The section did not, however, permit a long-form indictment to be amended so as "to substitute and allege a crime not charged by the Grand Jury" (People v Crawford, 27 A.D.2d 312, 313-314). A similar question was presented in People v Houppert ( 28 A.D.2d 807) where at the close of the People's case the indictment was amended by adding the words "or that of another", to reflect the People's proof that the defendant had committed the assault to prevent the apprehension of a third party rather than himself. We reversed the conviction and dismissed the indictment, concluding that "the amendment was completely invalid and bestowed no jurisdiction upon the court".
The jury returned a verdict of guilty as to robbery in the second degree. In view of the fact that no "accomplice theory" of prosecution was presented by the indictment, appellant's constitutional right to be tried for a felony only upon indictment was violated (see N Y Const, art I, ยง 6; People v Miles, 289 N.Y. 360; People v Houppert, 28 A.D.2d 807). Here, there was no application by the People to amend the indictment, which was done, in essence, sua sponte, by Criminal Term (cf. CPL 200.70, subd 1). Robbery in the second degree, as submitted to the jury, is not a lesser included offense of robbery in the first degree, since the presence of an accomplice is not a necessary element of the latter crime (see People v Acevedo, 40 N.Y.2d 701).
The motion to amend was governed by CPL 200.70 (subd. 2) which provides, in pertinent part: "nor may an indictment be amended for the purpose of curing: * * * (c) A misjoinder of offenses". The amendment was unauthorized and improper (see People v. Brumfield, 31 A.D.2d 726; People v. Houppert, 28 A.D.2d 807). It subjected defendant to conviction and sentence on six counts although the Grand Jury had only returned a four-count indictment. Despite the fact that the trial court imposed equal concurrent indeterminate prison terms of up to four years on each of the five felony convictions and six months on the petit larceny conviction, defendant stands convicted, of record, of six crimes rather than four.
(See People v. Goyette, 282 App. Div. 980; People v. Hooter, 282 App. Div. 398.) Furthermore the amendment sought to substitute and allege a crime not charged by the Grand Jury and was therefore completely invalid and bestowed no jurisdiction upon the court to try the crime charged in the count as amended. (See People v. Houppert, 28 A.D.2d 807; People v. Crawford, 27 A.D.2d 312.)