Opinion
May 30, 1997
Present — Green, J.P., Pine, Lawton, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that County Court erred in allowing the People to amend count three of the indictment. That count charged defendant with committing the crime of assault in the first degree in that, "in the course of committing the felony of Robbery[, defendant] did cause serious physical injury to [the victim], a person other than one of the participants, by striking [him] in the head with a sawed off baseball bat". The phrase, "by striking [him] in the head with a sawed off baseball bat", was deleted. The amendment did not change the theory of the prosecution and, in any event, defendant was acquitted of count three and thus has failed to show that he was prejudiced by the amendment (see, People v. Sage, 204 A.D.2d 746, lv denied 84 N.Y.2d 832; People v. Johnson, 163 A.D.2d 613, lv denied 76 N.Y.2d 940).
The contention that defendant was deprived of Brady material is not preserved for our review ( see, People v. Griffin, 129 A.D.2d 975, lv denied 69 N.Y.2d 1004), and we decline to exercise our power to reach it as a matter of discretion in the interest of justice ( see, CPL 470.15[a]).
Finally, upon our review of the record, we conclude that the verdict is supported by legally sufficient evidence and is not contrary to the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). (Appeal from Judgment of Cayuga County Court, Corning, J. — Assault, 1st Degree.)