Opinion
November 6, 1995
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of robbery in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
It was error for the trial court to grant the People's motion to amend the first count of the indictment, charging the defendant with robbery in the first degree, by deleting the words "displayed what appeared to be [a knife]" and inserting the words "used or threatened the immediate use of a dangerous instrument to wit [a knife]". This amendment was "an impermissible substantive change in the indictment which cannot stand" (People v Chicas, 204 A.D.2d 476, 477; see also, People v Perez, 83 N.Y.2d 269, modfg 191 A.D.2d 285).
The defendant's remaining contentions are without merit. Sullivan, J.P., Altman, Hart and Friedmann, JJ., concur.