Opinion
February 23, 1987
Appeal from the Supreme Court, Queens County (Bianchi, J.).
Ordered that the judgment is affirmed.
The amendment of the indictment in this case merely corrected an error in form and in no way changed the theory of the prosecution as reflected in the evidence before the Grand Jury (see, CPL 200.70). The defendant was clearly aware of the erroneous designation and chose, as a matter of trial tactics, to rely thereon as the basis for his trial defense. Accordingly, he was in no way prejudiced or misled. Thus, the indictment was properly amended by correcting the erroneous degree of the crime of bail jumping designated in the accusatory portion of the indictment to reflect the higher degree supported by the factual allegation of the indictment, which was controlling (see, People v. Randall, 9 N.Y.2d 413, 422; People v. Hutchins, 43 A.D.2d 412, 414). Bracken, J.P., Brown, Rubin and Spatt, JJ., concur.