| People v Dorfeuille |
| 2012 NY Slip Op 00132 [91 AD3d 1023] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RoodyDorfeuille, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 20, 2009, upon a verdict convicting defendant of the crimes of gangassault in the first degree, gang assault in the second degree, assault in the first degree and assaultin the second degree.
In an attack on the victim, defendant punched him in the chest, codefendant Darryl Tuckerpunched the victim in the face and codefendant Jevaughn Francis kicked the victim in the head ashe fell. Defendant and Tucker continued to hit the victim while he was on the ground. During theassault, the victim was stabbed eight times. A jury found defendant and Tucker guilty of gangassault in the first and second degrees and assault in the first and second degrees, and foundFrancis guilty of assault in the second degree.[FN*]County Court sentenced defendant to concurrent terms of 12 years in prison followed by fiveyears of postrelease supervision for both gang assault in the first degree and assault in the firstdegree, seven years followed by five years of postrelease supervision for gang assault in thesecond degree, and seven years followed by [*2]three years ofpostrelease supervision for assault in the second degree. Defendant appeals.
County Court did not err in constructively amending the indictment. The court merelyclarified some inartfully worded portions of the indictment to reflect that the codefendants aidedeach other; the original language stated that all three codefendants aided another person,implying that a fourth person may have been involved. Although some grand jury witnessestestified that more than three individuals attacked the victim, the People's theory was always thatthe three codefendants aided each other. While the People did not make a formal motion toamend and the court did not issue a formal order (see CPL 200.70 [1]), after argumentconcerning the language of the indictment the court informed the parties that it intended tomodify the language when reading the charges to the jury. The amendment slightly altered thefacts stated in the indictment, but did not change the People's theory of the case, and defendantwas not prejudiced because he could have been convicted of the crimes whether he aided a fourthperson or just his codefendants (see CPL 200.70; People v Spratley, 144 AD2d769, 771 [1988], lv denied 73 NY2d 896 [1989]; see also People v Roberts, 163AD2d 690, 690 [1990]; compare People v Rivera, 84 NY2d 766, 769 [1995]). Thus, theconstructive amendment did not constitute error.
For the reasons stated in our decision resolving Tucker's appeal (People v Tucker, 91AD3d 1030; [2012] [decided herewith]), we dismiss the counts charging gang assault in thesecond degree and assault in the second degree, reduce the conviction of gang assault in the firstdegree to attempted gang assault in the first degree and reduce the conviction of assault in thefirst degree to attempted assault in the first degree. Because we must remit for County Court toimpose sentence on those reduced counts (see CPL 470.20 [4]), defendant's argumentsconcerning his sentence—including the court's denial of youthful offenderstatus—are academic or can be raised at the resentencing hearing.
Defendant's remaining contentions have been reviewed and are without merit.
Mercure, A.P.J., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment ismodified, on the law and as a matter of discretion in the interest of justice, by (1) reversingdefendant's convictions for gang assault in the second degree under count 5 of the indictment andassault in the second degree under count 7 of the indictment and (2) reducing defendant'sconvictions for (a) gang assault in the first degree under count 4 of the indictment to attemptedgang assault in the first degree and (b) assault in the first degree under count 6 of the indictmentto attempted assault in the first degree; counts 5 and 7 dismissed, the sentences imposed oncounts 4, 5, 6 and 7 vacated, and matter remitted to the County Court of St. Lawrence County forresentencing on counts 4 and 6; and, as so modified, affirmed.
Footnote *: This Court affirmed Francis'sconviction (People v Francis, 83AD3d 1119 [2011], lv denied 17 NY3d 806 [2011]).