PEOPLE v. HALE (1997)

County Court properly denied the motion to suppress a statement made by defendant to the police.   Upon our review of the record, we conclude that the statement was neither obtained in violation of defendant's right to counsel (see, People v. Bing, 76 N.Y.2d 331, 349, 559 N.Y.S.2d 474, 558 N.E.2d 1011) nor induced by improper promises (see, CPL 60.45[2][b][i] ).   We further conclude that the statement was voluntary.

The court's instruction to the jury with respect to the voluntariness of defendant's statement was an accurate statement of the fundamental legal principles and does not require reversal (see, CPL 300.10[2] ).

The court properly amended the indictment to reflect that the crime occurred on November 26, 1993 or November 27, 1993, rather than November 25, 1993 or November 26, 1993 (see, CPL 200.70[1] ).   The amendment did not change the theory of the prosecution or otherwise prejudice defendant, and defendant's motion for a mistrial based upon the amendment was therefore properly denied (see, People v. Spann, 56 N.Y.2d 469, 472, 452 N.Y.S.2d 869, 438 N.E.2d 402;  People v. Palmer, 152 A.D.2d 924, 543 N.Y.S.2d 836, lv. denied 74 N.Y.2d 850, 546 N.Y.S.2d 1015, 546 N.E.2d 198).

Because we do not reverse the conviction after trial, we also do not reverse the subsequent conviction of defendant upon his guilty plea (cf., People v. Fuggazzatto, 62 N.Y.2d 862, 477 N.Y.S.2d 619, 466 N.E.2d 159).

Judgment unanimously affirmed.

MEMORANDUM: