People ex rel. Marx v. La Vallee

Greenblott, J. Appeal from a judgment of the Supreme Court at Special Term, entered May 13,1969 in Clinton County, which dismissed a writ of habeas corpus after a hearing. Appellant was convicted following trial of the crime of murder in the first degree in Queens County on June 27, 1957, and was thereafter sentenced to a term of life imprisonment. He contends that his conviction was invalid, alleging (1) that the prosecution was permitted to orally amend the indictment in its opening statement to the jury, and (2) the trial court committed further error when it included in its charge the crime of felony murder when the indictment, as returned, alleged premeditated murder. Respondent’s contention that one indicted for premeditated murder, first degree, under former subdivision 1 of section 1044 of the Penal Law, could lawfully be convicted of felony murder under subdivision 2 of that section, is well-founded. It is established case law that an indictment in common-law form, stating facts constituting murder in the first degree, is sufficient to sustain a conviction if the proof is within any of the statutory definitions of the crime. (See People v. Donaldson, 295 N. Y. 158; People v. Sullivan, 173 N. Y. 122; People v. Giblin, 115 N. Y. 196; and People v. Snelling, 33 Mise 2d 735.) Judgment affirmed, without costs. Herlihy, P. J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Greenblott, J.