AD3: amendment of indictment to change time of crime from "p.m." to "a.m." permissible

People v Alexander, 2007 NY Slip Op 01021 [available here]

The defendant in Alexander was indicted for selling drugs at 9:15 p.m. Turns out, the sale occurred at 9:15 a.m. (Alexander, 2007 NY Slip Op 01021.) The People made a motion prior to trial to amend to indictment to reflect the 9:15 a.m. sale. The trial court granted the motion. (Id. at __.) No error, said the Third Department: "[c]ourts are permitted to order amendment of an indictment to correct a defect, error or variance from the proof with respect to time, among other things, where the amendment does not change the prosecution's theory as reflected in the evidence before the grand jury or otherwise prejudice the defendant." (Id.) The defendant could show no such prejudice--he knew before trial that the sale actually occurred at 9:15 a.m., he offered no alibi evidence for the 9:15 p.m. time, and the court granted an "overnight adjournment" to give defense counsel time to adjust strategy. (Id.) The Third Department refused to consider whether the amendment "varied from the evidence before the grand jury", because counsel on appeal did not include the grand jury minutes in the record. (Id.)

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