Opinion
March 16, 1993
Appeal from the Supreme Court, Bronx County (Frank Diaz, J.).
The IAS Court properly granted the People's motion to amend the indictment. The evidence demonstrates that the Grand Jury voted to indict defendant for, inter alia, second degree criminal possession of a weapon; however, said count was inadvertently omitted from the filed indictment. The amendment clearly does not alter the theory of the prosecution. The Grand Jury heard evidence supporting such a count and had voted to so charge defendant. Hence, the IAS Court properly rectified a ministerial error (CPL 200.70; see, People v. Gray, 157 A.D.2d 596, lv denied 75 N.Y.2d 966; People v. Vasquez, 189 A.D.2d 578).
Defendant also contends that evidence of uncharged crimes was introduced, to his prejudice. This contention was not properly preserved for this Court's review as a matter of law and we thus do not address it. Were we to review in the interest of justice, we would find it to be of no merit. Indeed, the possession of bullets is not a crime and such evidence was necessary to complete the witness' narrative (see, People v. Mendez, 165 A.D.2d 751, lv denied 77 N.Y.2d 880). Moreover, the other alleged evidence of an uncharged crime — that defendant pointed a gun at the complainant's brother — was stricken from the record and defense counsel expressly requested no further judicial action.
We also find that the sentence imposed upon defendant was fair and proper under the circumstances.
We have considered defendant's remaining claims and find them to be meritless.
Concur — Milonas, J.P., Ellerin, Ross, Kassal and Rubin, JJ.