PEOPLE v. RANSDELL (1998)

Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered December 14, 1995, convicting defendant, after a jury trial, of burglary in the second degree and possession of burglar's tools, and sentencing him, as a second violent felony offender, to concurrent terms of 41/212 to 9 years and 1 year, respectively, unanimously affirmed.

 Defendant's suppression motion was properly denied.   Contrary to defendant's claim, the police reasonably concluded from all the circumstances that the victim's exclamation “That's him!”, made while pointing to defendant, was based on personal knowledge (see People v. Wearing, 246 A.D.2d 404, 666 N.Y.S.2d 426, lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895).  The court did not constructively amend the indictment by charging that the People needed to prove only that defendant had entered the building, rather than the specific apartment where the victim resided where the court's burglary charge did not vary from the indictment (People v. Perry, 226 A.D.2d 282, 641 N.Y.S.2d 292, lv. denied, 88 N.Y.2d 940, 647 N.Y.S.2d 173, 670 N.E.2d 457;  People v. James, 204 A.D.2d 180, 612 N.Y.S.2d 131, lv. denied, 84 N.Y.2d 827, 617 N.Y.S.2d 147, 641 N.E.2d 168).   We do not read the People's voluntary disclosure form as limiting the theory of prosecution (see, People v. Medina, 233 A.D.2d 927, 649 N.Y.S.2d 566, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 728, 677 N.E.2d 300).

MEMORANDUM DECISION.