(dissenting). The People appeal by permission from an order of the County Court, Broome County (Brink, J.), which reversed the judgment of conviction of the City Court of *340the City of Binghamton entered on a jury verdict finding defendant guilty of the crime of driving while intoxicated (Vehicle and Traffic Law, § 70, subd. 5).
The sole question presented is whether the trial court erred in granting the People’s motion to amend the information by substituting December 17,1952, as the date of the commission of the crime for and instead of December 17, 1953, the date set forth in the written information. The amendment was granted over objection by defendant ’„s counsel and exception noted.
Apparently we have not previously considered this precise question, although it has long been our rule that an indictment charging the commission of the crime subsequent to the finding of the same by the Grand Jury may not be amended. The rationale is that a date charging the commission of the crime “ months subsequent to the finding of the same by the grand jury [is] an impossible date, and as matter of law cannot be regarded as charging a crime ”. “ Such omission ” — to charge the defendant with the commission of the crime prior to the finding of the indictment — is “ not one of form but of substance.” (People v. Van Every, 222 N. Y. 74, 77-78.) In other words, an amendment as to date of the commission of the crime from a date subsequent to the date of the indictment to a date prior thereto goes to the very substance of the charge by making valid that which was otherwise invalid as a matter of law. Such holding has been consistently followed (People v. Guiley, 222 N. Y. 548; People v. Schweizer, 160 Misc. 23).
When the converse situation arises an amendment is permitted to correct a wrong antecedent date for although it may be wrong, the charge designates a crime that could have been committed. In such a situation the date relates to form and not to substance unless “ time is a material ingredient in the crime ” (Code Crim. Pro., § 280; People v. Van Every, supra).
This distinction is equally applicable to the amendment of an information. True it is in its inception, an information is not attended by the same formalities as the finding of an indictment by a grand jury and is not subject to the disability occasioned by the discharge of the grand jury. Nonetheless, in point of law, there is no distinction between an indictment and an information *341as to the statement of facts sufficient to constitute a crime. When the alleged date of the commission of the crime is subsequent to the date of the information as a matter of law, no crime is charged. To grant an amendment thereof so- as to vitalize and make valid an otherwise sterile and legally invalid charge would deprive an accused of a very material and substantial right. He is entitled to make his plea and go to trial on the crime as charged in the information and if, as a matter of law, no crime be charged, he is entitled to a dismissal (cf. People v. Zambounis, 251 N. Y. 94).
There is a vast difference between allowing an amendment for purposes of particularization and clarification of the allegation of the crime charged and an amendment which has the effect of changing the charge which states no crime into one that does (People v. Van Every, supra). To disallow an amendment for such purpose is not exalting form over substance but rather is substance itself — affording as it does, an opportunity to an accused, which is his right — to be informed of the crime with which he is charged — not some other crime as to which he may be subsequently informed at the convenience of the People (People v. Jacoby, 304 N. Y. 33). To adopt any other rule would be to encourage laxity and carelessness on the part of persons representing the People, to the substantial prejudice of an accused.
The order of the County Court of Broome County reversing the judgment of conviction, dismissing the information and directing that the fine of $100 be remitted should be affirmed.
Lewis, Ch. J., Conway, Desmond and Van Voobhis, JJ., concur with Ftjld, J.; Dye, J., dissents in an opinion in which Fboessel, J., concurs.
Order reversed, etc.