Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Callahan, J.P., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The court erred in permitting the People to amend the second count of the indictment during trial. The amendment changed the theory of prosecution on the charge of aggravated unlicensed operation of a motor vehicle in the first degree (see, CPL 200.70, [2]; People v Grega, 72 N.Y.2d 489, 498-500; People v Powell, 153 A.D.2d 54; People v Renna, 132 A.D.2d 981, 982). Accordingly, defendant's conviction on that count should be reversed and the count dismissed.