People v. Ercole

Burke, J. This appeal involves a determination as to whether section 295-j of the Code of Criminal Procedure may be invoked to amend all indictments or is restricted in its application to indictments drawn and presented to the Grand Jury in accordance with the provisions of sections 295-b, 295-c, 295-d and 295-e of the Code of Criminal Procedure which are part of chapter III-A of title V of part IV of that code entitled “ Simplified Indictments ”. In this case the original indictment as presented to the Grand Jury was prepared in accordance with section 276 of the Code of Criminal Procedure. The indictment contained four counts, the first charging grand larceny in the first degree, the second, third and fourth counts alleging petit larceny. The first count accused the defendant of grand larceny in the first degree in that ‘ ‘ between the 11th day of October, 1950, to on or about the 22nd day of June, 1951, in the County of Kings, [he] stole and took from the possession of A. Pellegrino & Son, Inc., currency of the United States of America in the amount of approximately $2,195.50, with the intent to deprive the owner of said property, and the use and benefit thereof, and to appropriate the same to the use of the said defendant.” The three — 429 — petit larceny counts are similar in form to the grand larceny count, differing only as to the amount and date of the larceny. However, the dates upon which the petit larceny was committed are embraced within the period of October, 1950, to June, 1951, averred in the first count of grand larceny. During the examination of the first witness for the People, the defendant objected to further interrogation upon the ground that the indictment failed to allege that the defendant made use of a false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, as required by section 1290-a of the Penal Law. This objection was sustained, whereupon the People moved the court, pursuant to section 295-j of the Code of Criminal Procedure, to amend the indictment by adding thereto a fifth count of grand larceny in the first degree and a sixth, seventh and eighth count, each of petit larceny. The amendment was granted over the objection of the defendant. All of the added counts were identical with the corresponding counts of the original indictment, but added allegations that the commission of the respective larcenies was aided through use of false representation and pretenses. The original four counts of the indictment remained. Thus, prior to the close of the People’s case, the indictment contained the primary four counts of larceny plus the added four counts. At that juncture, the first, second, third and fourth counts were dismissed upon the election of the District Attorney to proceed only on counts five, six, seven and eight. Prior to summations, the court dismissed the sixth, seventh and eighth counts with the consent of both parties, submitting to the jury only the fifth count upon which the defendant was convicted. The Appellate Division, while affirming the facts, reversed the conviction on the law alone and dismissed the indictment. The reversal was on the ground that an amendment to an indictment under section 295-j of the code can be granted only after the formal introduction of proof, and that section 295-j of the code does not permit an amendment to conform to evidence which has not been introduced and which, according to the express prohibition of a statute, could not have been introduced upon the indictment as found by the Grand Jury. — 430 — The defendant in addition asserts that the amendment here was improperly granted since section 295-j of the code authorizes amendments only of simplified indictments. We are in agreement with this latter contention. Subdivision 1 of section 1290-a of the Penal Law states that if “ the defendant made use of any false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretense ”. The indictment here failed to allege a false or fraudulent representation or pretense in connection with the larceny. Section 1290-a of the Penal Law, in addition to laying down a rule as to the introduction of evidence, likewise provided for the manner in which larceny achieved by false representation must be pleaded. It is clear from section 295-a of the code that the Legislature intended that the long-form or statutory indictment continue to be used notwithstanding the innovation of simplified indictments. We must bear in mind that an indictment is an instrument required by the Constitution, not by the Legislature, stating the crime and the nature of the act constituting it. (N. Y. Const., art. I, § 6). The Legislature has been ever conscious of the constitutional requirements, for prior to the enactment of the Code of Criminal Procedure in 1881, there was no provision for the amendment of an indictment and indictments were subject to dismissal on extremely technical grounds. With the adoption of the code came the abandonment of the common-law formalism and technicalities which had plagued those charged with the drawing of indictments and which had rendered necessary the dismissal of many an indictment. At the same time, provision was made for the amendment of the new statutory form of indictment — colloquially known as a ‘ ‘ long-form indictment ” — to a certain limited degree. Thus section 293 of the code provides as follows: ‘ ‘ Upon the trial of an indictment, when a variance between the allegation therein and the proof, in respect to time, or in the name or description of any place, person or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended. — 431 — according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable.” Insofar as the long-form or statutory indictment is concerned, an amendment is permitted but only to the extent that there is a variance as to (1) time, (2) name or (3) description of any place, person or thing, and then only subject to the condition that the defense will not be prejudiced on the merits. In 1929, the Legislature further liberalized the requirements of indictments by authorizing prosecutions under “ simplified indictments ” as prescribed in sections 295-a to 295-k of the code. As part of this particular enactment and apparently with reference solely to simplified indictments, the Legislature adopted section 295-j dealing with the amendment of indictments. The text of section 295-j is as follows: “ § 295-j. When amendment allowed. Upon the trial of an indictment, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable, by adding thereto new counts, where it is made to appear that the crimes to be charged therein relate to the transaction upon which the defendant stands indicted. The court may likewise, upon the same terms and under similar circumstances, direct the bill of particulars to be amended according to the proof, when a variance between the bill of particulars and the proof shall appear.” It would seem abundantly clear that section 295-j is applicable only to the amendment of a simplified indictment inasmuch as it was enacted as part of an over-all legislative scheme to authorize prosecution by simplified indictments. There is a complete lack of authority indicating that the Legislature intended that section 295-j should apply other than to an indictment under sections 295-b, 295-c, 295-d and 295-e. In examining chapter 176 of the Laws of 1929 one finds the following language: ‘ ‘ Title five of part four of the code of criminal procedure is hereby amended by inserting therein a new chapter, to be chapter three-a, to read as follows: — 432 — CHAPTER III-A Simplified Indictments ” Then follows the enumeration of sections 295-a through 295-k. It is a principle of statutory construction that the headings of the various chapters or sections of an act, when inserted by the Legislature, are considered as part of their respective chapters and sections and are construed accordingly. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 130.) As stated in People v. Molyneux (40 N. Y. 113, 119): “ Those headings are not titles of the acts, but are parts of the statute, limiting and defining their effect.” (See, also, People v. Realmato, 294 N. Y. 45, 49.) Even though our Code of Criminal Procedure authorizes the correction of mistakes or errors in respect to pleadings when no substantial rights are infringed (Code Crim. Pro., § 684), nevertheless we must assume that the Legislature has adopted and prescribed a logical pattern to do so in keeping with the provision of the Constitution. We have a clearly expressed intention of the Legislature to approve the continued use of the long-form or statutory indictment as authorized in sections 273 to 292-a of the Code of Criminal Procedure. Moreover, chapter III of title Y of part IY of the code, the heading of which is ‘ ‘ Amendment of the Indictment ’ ’, contains section 293 which enumerates the only situations under which the amendment of the long-form or statutory indictment is permissible. If we are to give section 295-j of the code the meaning which the trial court would have us do, section 293 of the code will be completely superseded by section 295-j. Language more definite is necessary before such a drastic change should be ascribed to the Legislature. • (3 Sutherland on Statutory Construction [3d ed., 1943], § 6201.) Indeed in those eases where the application of companion sections to section 295-j of the code has been considered in the lower courts, it has consistently been held that sections 295-g and 295-h of chapter III-A are applicable only to “ Simplified Indictments ” and do not change the existing rule as to long-form or statutory indictments (People v. Parkinson, 43 N. Y. S. 2d 690; People v. Keohane, 201 Misc. 597; People v. Seeley, 75 N. Y. S. 2d 833). If the Legislature intended that — 433 — section 295-j should apply to long-form indictments drawn pursuant to section 276 of the code, the only logical course would have been to add that section to chapter III of title V of part IV of the code entitled ‘‘ Amendment of the Indictment ’ ’ rather than to insert it as one of the sections under chapter III-A of title V of part IV entitled “ Simplified Indictments ”. It is significant that sections 295-a to 295-k refer merely to ‘ * the indictment ” or “ an indictment ” whereas section 295-1, which was added to the code by chapter 506 of the Laws of 1935, reads: “ In all cases where a defendant has been indicted by a grand jury ”, obviously making a distinction between the applicability of section 295-1 and the preceding sections. Any other construction would defeat the plain intent of the Legislature. The Legislature, aware of constitutional limitations, has provided two procedures for pleading in criminal cases, the first procedure initially established in 1881 being set forth in sections 273 to 292-a of the code, and the second procedure established in 1929 being set forth in sections 295-b to 295-k of the code. An indictment drawn and presented to the Grand Jury under sections 273 to 292-a may be amended only pursuant to section 293 of chapter TIT of title V of part IV of the code. Indictments drawn and presented to the Grand Jury under sections 295-b to 295-k may be amended only pursuant to section 295-j of the code. The language of section 295-1 added in 1935 clearly illustrates the substantial distinction between the two procedures as it alone of all the sections under chapter III-A expressly and explicitly refers to all cases where a defendant has been indicted. That the Legislature refrained from using this all-inclusive language in the other sections of chapter III-A is a clear indication of its intent to limit the use of those sections as supplements to simplified indictments. We believe a fair reading of sections 295-b, 295-c, 295-d, 295-e, 295-f, 295-g, 295-h, and 295-i of the code compels a conclusion that they are interrelated, and should be construed together. (2 Sutherland on Statutory Construction [3d ed., 1943], §§ 4703, 4704, 5205). Sections 295-j and 295-k are not only not distinguishable in their terms from the prior sections, but are definitely part of the legislative scheme employed in drafting chapter III-A. — 434 — The contention that each section under chapter III-A prior to the addition of section 295-1 should be construed as independent and unrelated to the other sections has already been rejected. This court has declared that a simplified indictment in form provided by section 295-d should be read together with the bill of particulars required by section 295-g in order to determine the sufficiency of the simplified indictment. This is so because the simplified indictment contains only a description of the crime whereas an indictment sufficient under the Constitution must also contain a statement of the facts by which it is constituted. (People v. Bogdanoff, 254 N. Y. 16, 23, 24, 25.) In the absence of any showing of legislative intent to the contrary, we do not believe that there was statutory authority for granting the amendment under section 295-j of the code. The defendant took timely and appropriate objection and thereby preserved his rights on this appeal. The issue presented on this appeal was not raised and certainly not presented for decision in the cases of People ex rel. Prince v. Brophy (273 N. Y. 90), People v. Miles (289 N. Y. 360) or People ex rel. Poulos v. McDonnell (302 N. Y. 89). Consequently they may not be relied upon as authority for the precise point here considered. In view of our disposition of the appeal on the grounds set forth above, it is unnecessary for us to discuss the grounds of reversal relied upon by the Appellate Division. The order of the Appellate Division should be affirmed.