Opinion
KA 99-05664
May 2, 2003.
Appeal from a judgment of Yates County Court (Falvey, J.), entered January 21, 1999, convicting defendant after a jury trial of criminal possession of a forged instrument in the second degree (three counts).
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
SUSAN H. LINDENMUTH, DISTRICT ATTORNEY, PENN YAN, FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of three counts of criminal possession of a forged instrument in the second degree (Penal Law 170.25). We reject defendant's contention that County Court improperly amended the superior court information (SCI) by instructing the jury on accessorial liability ( see People v. Cummings, 264 A.D.2d 854, 855, lv dismissed 94 N.Y.2d 918). "When the defendant was [charged] as a principal and evidence was admitted and the jury charged that defendant could be convicted either as a principal or an accomplice, no new theory of culpability was introduced into the case" ( People v Rivera, 84 N.Y.2d 766, 769). We also reject defendant's contention that the court erred in allowing the People to amend count one of the SCI to conform to the proof at trial with respect to the name of the payee of the forged instrument. The name of the payee is not a material element of the crime charged, and the amendment did "not tend to prejudice the defendant on the merits" (CPL 200.70; see People v Clonick, 289 A.D.2d 1031, 1032, lv denied 97 N.Y.2d 728; People v. Smith, 262 A.D.2d 196, 197, lv denied 93 N.Y.2d 1027, 94 N.Y.2d 799). The evidence, viewed in the light most favorable to the People ( see People v Contes, 60 N.Y.2d 620, 621), is legally sufficient to support the conviction ( see People v. Bleakley, 69 N.Y.2d 490, 495). Finally, the verdict is not against the weight of the evidence ( see id.).