Opinion
November 21, 1988
Appeal from the Supreme Court, Kings County (Kreindler, J.).
Ordered that the judgment is affirmed.
The amendment of the indictment in this case merely corrected an error in form and did not change the theory of the prosecution as reflected in the evidence before the Grand Jury (see, CPL 200.70; People v. Shannon, 127 A.D.2d 863, lv denied 69 N.Y.2d 1009). In any event, escape in the third degree is a lesser included offense of escape in the second degree as it would be impossible to commit escape in the second degree without concomitantly committing escape in the third degree (see, Penal Law § 205.05, 205.10 Penal). A reasonable view of the evidence in this case supported the finding that the defendant had committed the lesser but not the greater offense, and the court properly submitted to the jury the reduced charge of escape in the third degree (see, People v. Glover, 57 N.Y.2d 61; People v. Shannon, supra).
We have examined the defendant's remaining contention and find it to be without merit. Bracken, J.P., Kunzeman, Weinstein and Eiber, JJ., concur.