PEOPLE v. RIVERA (2000)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered January 16, 1996, convicting him of assault in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the identity of the intended target is not an essential element of assault in the first degree (see, People v. Charles, 61 N.Y.2d 321, 473 N.Y.S.2d 941, 462 N.E.2d 118;  People v. Castellanos, 234 A.D.2d 381, 651 N.Y.S.2d 876;  People v. Cassidy, 133 A.D.2d 374, 519 N.Y.S.2d 275).   Therefore, the court's charge to the jury was a permissible constructive amendment to the indictment in that it neither changed the theory of the prosecution nor otherwise prejudiced the defendant on the merits (see, People v. Spann, 56 N.Y.2d 469, 473, 452 N.Y.S.2d 869, 438 N.E.2d 402;  CPL 200.70[1] ).   Moreover, the proof presented at trial did not vary from the allegations before the Grand Jury and, therefore, the defendant was not deprived of fair notice of what the People would attempt to prove or the right to be tried on charges determined by the Grand Jury (see, People v. Grega, 72 N.Y.2d 489, 496, 534 N.Y.S.2d 647, 531 N.E.2d 279).

MEMORANDUM BY THE COURT.