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People v. Johnson

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1982
87 A.D.2d 829 (N.Y. App. Div. 1982)

Summary

In Johnson (supra) the trial court, on the day before the trial began, granted the People's motion, on defendant's pro se consent, to delete that part of the original indictment for burglary which charged the defendant with "acting in concert with another person" when he allegedly knowingly entered and remained unlawfully in the subject dwelling.

Summary of this case from People v. Ceballos

Opinion

April 5, 1982


Appeal by defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered April 14, 1981, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The trial court failed to fully explain to the defendant the risks of self-representation. ( People v. Harris, 85 A.D.2d 742, mot for lv to app granted by this court on Jan. 27, 1982.) A valid waiver of defendant's fundamental constitutional right to counsel requires a proper allocution. ( People v. McIntyre, 36 N.Y.2d 10.) Accordingly, there must be a new trial. We note that the trial court, on the day before the trial began, granted the People's motion, on defendant's pro se consent, to delete that part of the original indictment which charged the defendant with "acting in concert with another person" when he allegedly knowingly entered and remained unlawfully in the subject dwelling. On appeal, the defendant intimates that it was error for the trial court to have granted that amendment. We disagree. Recently, in People v Torres ( 86 A.D.2d 988) a similar argument was made and rejected by this court. Such an amendment cannot be said to prejudice a defendant in his defense on the merits or in any way alter the theory of the People's case. We have reviewed the defendant's other contentions and find them to be lacking in merit. Damiani, J.P., Lazer, Brown and Niehoff, JJ., concur.


Summaries of

People v. Johnson

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1982
87 A.D.2d 829 (N.Y. App. Div. 1982)

In Johnson (supra) the trial court, on the day before the trial began, granted the People's motion, on defendant's pro se consent, to delete that part of the original indictment for burglary which charged the defendant with "acting in concert with another person" when he allegedly knowingly entered and remained unlawfully in the subject dwelling.

Summary of this case from People v. Ceballos
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID P. JOHNSON…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 5, 1982

Citations

87 A.D.2d 829 (N.Y. App. Div. 1982)

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