PEOPLE v. SMITH (1999)

Judgments, Supreme Court, New York County (Ronald Zweibel, J.), rendered December 9, 1996, convicting defendant, after a jury trial, of forgery in the second degree and criminal possession of a forged instrument in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 31/212 to 7 years and 1 year, respectively, and convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to a consecutive term of 11/212 to 3 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence from which the jury could have reasonably concluded that defendant forged the rental agreement in question.   We have considered and rejected defendant's remaining claims concerning the sufficiency of the evidence.

The court properly permitted amendment of the forgery count.   Even without the amendment, this count of the indictment sufficiently charged defendant with forgery in the second degree, because its reference to the document as a “rental authorization”, coupled with its reference to the applicable Penal Law section, provided defendant with fair notice of the charge (see, People v. Ray, 71 N.Y.2d 849, 527 N.Y.S.2d 740, 522 N.E.2d 1037).   In any event, the court's amendment of this count did not change the theory of the prosecution or prejudice defendant (see, CPL 200.70[1] ).

MEMORANDUM DECISION.