In a May 14, 2008 Decision and Order (see attached) this Court found that the FIRST COUNT of the indictment (Penal Law § 110.00/160.10-1)^[FN1] was on its face insufficient because it omitted the necessary statutory element "aided by another person actually present." The Court, however, reserved decision on whether or not to dismiss this count holding that if the District Attorney sought to amend the count to insert the omitted language it must do so in writing before the June 20, 2008 adjourned date, with a copy of the relevant evidence presented and instructions given to the Grand Jury to support such amendment, along with legal authority. The People have fully complied in writing dated June 12, 2008 and their application for leave to amend the indictment is hereby GRANTED for reasons addressed below.

The "limited circumstances" in which an indictment may be amended are governed by CPL 200.70(1). People v. LaPetina, 34 AD3d 836 (2d Dept 2006). That provision provides that a court may permit the "amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the Grand Jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits."

In the instant case the evidence adduced before the Grand Jury reveals that another person was with defendant during the attempted commission of the robbery. In addition, the prosecutor, when instructing the jury on COUNT ONE, used the correct statutory language: [*2]"...and when he is aided by another person actually present." The corresponding filed count also refers to Penal Law § § 110/160.10-1. An incorporation by specific reference to the Penal Law statute operates without more to constitute allegations of all the elements of the crime charged. See, People v. D'Angelo, 98 NY2d 733 (2002); People v. Ray, 71 NY2d 848 (1988); People v. Cohen, 52 NY2d 584 (1981). Moreover in this case, amending the indictment to add the missing words in the FIRST COUNT does not change the theory of the prosecution and is consistent with the evidence presented to the Grand Jury. See, People v. Massaro, 8 AD3d 408 (2d Dept 2004). Clearly, the omission was the result of a clerical or transcription error and the People's application to remedy this oversight is promptly being made pre-trial, with no evidence that defendant will suffer any prejudice as a result thereof. See, People v. Roman, 279 AD2d 485 (2d Dept 2001), lv. denied 96 NY2d 806 (2001); People v. Penna, 261 AD2d 641 (2d Dept 1999), lv. denied 93 NY2d 976 (1999); People v. Teribury, 229 AD2d 829 (3d Dept 1996); People v. Weinstein, 254 AD2d 83 (1st Dept 1998); People v. Johnson, 178 AD2d 300 (1st Dept 1991), lv. denied 78 NY2d 1003 (1992); but see People v. Boyd, 59 AD2d 558 (2d Dept 1977).

Accordingly, for all the reasons addressed herein, the People's application to amend COUNT ONE in the indictment is GRANTED.

IT IS SO ORDERED,

ENTER,

_____________________________

J.S.C.