SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
October 24, 1968
THE PEOPLE OF THE STATE OF NEW YORK EX REL. MICHAEL WILLIAMS, APPELLANT
J. EDWIN LA VALLEE, AS WARDEN OF AUBURN PRISON, RESPONDENT
Appeal from order of Cayuga County Court dismissing writ of habeas corpus, following a hearing.
Bastow, P. J., Williams, Del Vecchio, Marsh and Witmer, JJ.
Memorandum: The indictment herein, being in long form, is defective insofar as it charges murder, first degree, because, omitted therefrom is the essential allegation that the act was done with a deliberate and premeditated design to effect death (Penal Law, § 1044, subd. 1) or that the act was done in a manner to bring the crime within the provisions of subdivision 2 of the same section. Being in long form, the defect could not be corrected by amendment or the deficiency supplied by a bill of particulars or ignored (People v. Ercole, 308 N. Y. 425). Nevertheless the defect was not fatal. The misnomer in describing the offense as in the first instead of in the second degree is of no moment if the specific allegations of fact are sufficient as they are here to describe the ingredients of murder in the second degree to which crime appellant plead guilty. (People v. Oliver, 3 N.Y.2d 684.) Lastly, we agree with the conclusion of County Court that the issue may not be raised by way of habeas corpus. "The sufficiency of an indictment must be raised before judgment (e. g. People v. Parker, 8 A.D.2d 863) unless the defect complained of would strip the court of jurisdiction, and such is clearly not the case here." (People ex rel. Wysokowski v. Conboy, 19 A.D.2d 663
, 664, mot. for lv. to app. den. 13 N.Y.2d 597.)
Order unanimously affirmed.
© 1998 VersusLaw Inc.