Opinion
Argued December 18, 1974
Decided December 20, 1974
Appeal from the Supreme Court in the First Judicial Department, NEAL P. BOTTIGLIERI, J.
Christopher B. Kende and William E. Hellerstein for appellant.
Mario Merola, District Attorney ( Jane Bilus Gould of counsel), for respondent.
MEMORANDUM. The order of the Appellate Term should be affirmed.
Assuming that under the combined rules of People v. McGuire ( 5 N.Y.2d 523) and People v. Moyer ( 27 N.Y.2d 252) it was necessary for the criminal information under which defendant was tried to contain a separate count of harassment or specific allegation of an intent to harass, the rules were satisfied by the trial amendment. True, the amendment was made over objection, but in light of the intimate relation between the assault charge and a harassment the amendment was properly allowed. The trial evidence demonstrated beyond a doubt that the charges of harassment and assault were factually inseparable. While the same might have been said of the evidence in the Moyer case ( supra), nevertheless, the information in that case, according to the majority there, failed analytically to include implicitly an intent to harass.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur.
Order affirmed in a memorandum.