Opinion
December 24, 1990
Appeal from the Supreme Court, Queens County (Farlo, J.).
Ordered that the judgment is affirmed.
On the night of February 18, 1987, the defendant and four others approached the complaining witness as he left his car to enter his Queens apartment. The defendant held a knife to the complainant's throat and threatened him while the other participants removed his property. Shortly after the robbery, all of the five participants were arrested in the immediate vicinity of the crime scene and identified by the complainant. The complainant's property was recovered.
A knife was recovered from the defendant which the complainant identified as the knife used by the defendant during the robbery. The defendant made a statement admitting that he held a "blade" to the complainant's neck. The knife, which was described as having a small silver handle with a razor blade at the end, was introduced in evidence at the trial.
The count in the indictment charging the defendant with robbery in the first degree alleged that the defendants, acting in concert, "were armed with a deadly weapon, to wit, a switchblade knife". Similarly, the count of the indictment charging the defendant with criminal possession of a weapon in the fourth degree alleged that the defendants, acting in concert, "unlawfully possessed a deadly weapon, to wit; a switchblade knife". Prior to opening statements, the trial court permitted the prosecution to amend the indictment by substituting the language in the robbery in the first degree count to allege instead that the defendants "used or threatened the immediate use of a dangerous instrument", and in the weapons possession count to allege that the defendant "unlawfully possessed a dangerous instrument". Counsel for the defendant stated that she had no objection to this amendment. The defendant was ultimately convicted of these and other counts contained in the indictment.
We reject the defendant's contention on appeal that the court was precluded from permitting this amendment pursuant to CPL 200.70 on the ground that it changed the theory of the prosecution. The prosecution's theory was that the defendant had, during the robbery, used the knife which was recovered from the defendant, identified by the complainant, and introduced into evidence. This theory never changed (see, People v. Johnson, 163 A.D.2d 613). The amendment was not designed to cure any insufficiency in the factual allegations (cf., People v. Sollars, 91 A.D.2d 909).
Moreover, by her failure to object, it is apparent that the defense counsel did not believe that the amendment prejudiced the defendant's defense (see, e.g., People v. Hartman, 123 A.D.2d 883; People v. Ames, 115 A.D.2d 543). In these circumstances, the trial court did not err in permitting the amendment. Moreover, the defendant's presence was not constitutionally required during the amendment application (see, People v. Anderson, 16 N.Y.2d 282, 288; People v. Vega, 34 A.D.2d 1019).
While the admission of the pretrial statements of the nontestifying codefendant was improper (see, Cruz v. State of New York, 481 U.S. 186; Bruton v. United States, 391 U.S. 123), under the circumstances the error was harmless beyond a reasonable doubt (see, People v. Eddins, 168 A.D.2d 630 [decided herewith]).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review and/or without merit. Bracken, J.P., Harwood, O'Brien and Ritter, JJ., concur.