(dissenting). I agree that there should be a new trial but do not agree that the amendment of the indictment was error, The amendment to each count alleged the same facts as were alleged in the original indictment; the only change was to the degree of the crime charged, the amendment in each case charging a lesser degree. The defendant was not prejudiced in any way, in fact he was assured by the amendment that if convicted his punishment would be less than if convicted of the highei degree alleged in the original indictment. The effect of the amendment was to add two new counts charging burglary ir the second degree and assault in the third degree alleging the identical facts set forth in the original indictment, and dismiss ing the counts of first degree burglary and second degree assault
There are statements from three opinions in the Court o: Appeals which I read as authority for the amendment here made
“ As to these matters [amendments permitted by sectioi 293] the court may permit an amendment upon the trial on sucl terms as to postponement as may be reasonable. To such powe: is now added the provisions of section 295-j, permitting th *405adding of a new count. As to any of these amendments, the defendant can consent in open court or they may be made at his request, or he may waive objection to any such amendment in such a way as to amount to consent.” (People ex rel. Prince v. Brophy, 273 N. Y. 90, 99.)
“ We' have not overlooked the rule of People ex rel. Prince v. Brophy (273 N. Y. 90), upon which the District Attorney relies. There it could fairly be said that a new count, which was suggested (p. 99) as one which might have been added by an amendment, came within the provisions of section 295-j, id., as being related ‘ to the transaction upon which the defendant stands indicted.’ ” (People v. Miles, 289 N. Y. 360, 364.)
“ It is also true that the indictment might have been amended by the addition of a new count, namely, assault in the third degree, had the statutory procedure been carried out (Code Crim. Pro., §§ 295-j, 295-k), in view of the fact that such count would merely be an inferior degree of the same generic crime with which they were already charged — assault (in the second degree) — or, in the words of the statute, it relates 1 to the transaction upon which the defendant stands indicted ’ ”. (People ex rel. Poulos v. McDonnell, 302 N. Y. 89, 92.)
In my view of the law as set forth in the above statements of the Court of Appeals the indictment was properly amended and the new trial of the defendant should be on the amended indictment and not on the original indictment.
All concur with Kimball, J., except Piper, J., who votes for reversal and for a new trial on the amended indictment, in opinion. Present — McCurh, J. P., Vaughah, Kimball, Piper and Wheeler, JJ.
Judgment of conviction reversed on the law and a new trial on the original indictment granted.