accomplice in fact instruction in New York

2014We agree with the defendant that the evidence adduced at trial created a question as to Mogavero’s role in the crime, and therefore the trial court should have charged the jury with an accomplice in fact instruction (see Jones, 73 NY2d at 903 [“Where differing inferences may reasonably be drawn as to whether a witness participated in the offenses an accomplice-in-fact instruction must be given”]).

2000There was no evidence presented from which the jury could reasonably infer that the witness participated in the offenses and thus no basis for an accomplice-in-fact instruction (see, People v Jones, 73 NY2d 902, 903 , rearg denied 74 NY2d 651 ).

2014In any event, the record contains ample corroborative evidence that the crimes of which he was convicted were committed, and thus the statutory corroboration requirement was met (see People v Chico, 90 NY2d 585, 589-590 [1997]; Green, 43 AD3d at 1281; People v Rutledge, 286 AD2d 962, 962 [2001], lv denied 97 NY2d 687 [2001]).

2014In any event, the record contains ample corroborative evidence that the crimes of which he was convicted were committed, and thus the statutory corroboration requirement was met (see People v Chico, 90 NY2d 585, 589-590 [1997]; Green, 43 AD3d at 1281; People v Rutledge, 286 AD2d 962, 962 [2001], lv denied 97 NY2d 687 [2001]).

2014Defendant failed to preserve for our review his contention that Supreme Court erred in failing to give an accomplice in fact instruction to the jury with respect to two prosecution witnesses (see People v Green, 43 AD3d 1279 , 1281 [2007], lv denied 9 NY3d 1034 [2008]; People v Navares, 162 AD2d 422, 424 [1990], lv denied 76 NY2d 942 [1990]).

2014Defendant failed to preserve for our review his contention that Supreme Court erred in failing to give an accomplice in fact instruction to the jury with respect to two prosecution witnesses (see People v Green, 43 AD3d 1279 , 1281 [2007], lv denied 9 NY3d 1034 [2008]; People v Navares, 162 AD2d 422, 424 [1990], lv denied 76 NY2d 942 [1990]).

2014Defendant failed to preserve for our review his contention that Supreme Court erred in failing to give an accomplice in fact instruction to the jury with respect to two prosecution witnesses (see People v Green, 43 AD3d 1279 , 1281 [2007], lv denied 9 NY3d 1034 [2008]; People v Navares, 162 AD2d 422, 424 [1990], lv denied 76 NY2d 942 [1990]).

2014Defendant failed to preserve for our review his contention that Supreme Court erred in failing to give an accomplice in fact instruction to the jury with respect to two prosecution witnesses (see People v Green, 43 AD3d 1279 , 1281 [2007], lv denied 9 NY3d 1034 [2008]; People v Navares, 162 AD2d 422, 424 [1990], lv denied 76 NY2d 942 [1990]).

2014In any event, the record contains ample corroborative evidence that the crimes of which he was convicted were committed, and thus the statutory corroboration requirement was met (see People v Chico, 90 NY2d 585, 589-590 [1997]; Green, 43 AD3d at 1281; People v Rutledge, 286 AD2d 962, 962 [2001], lv denied 97 NY2d 687 [2001]).

2014In any event, the record contains ample corroborative evidence that the crimes of which he was convicted were committed, and thus the statutory corroboration requirement was met (see People v Chico, 90 NY2d 585, 589-590 [1997]; Green, 43 AD3d at 1281; People v Rutledge, 286 AD2d 962, 962 [2001], lv denied 97 NY2d 687 [2001]).

2004Defendant argues that in asking that Castro’s accomplice status be submitted to the jury as a factual question, trial counsel “lost sight of the fact that by admitting membership in the on-going enterprise and the March attempted murder of Ortiz], Castro was appellant’s accomplice as a matter of law on the conspiracy count.” However, as indicated, since the date of the attempted murder was never established in the record, thereby leaving open the possibility that Castro participated in criminal acts independent of, and unrelated to, the charged conspiracy in this case, counsel properly sought

1992On the other hand, where differing inferences may reasonably be drawn from the evidence, the issue of complicity is for the jury’s resolution and an accomplice-in-fact instruction must be given (People v Sweet, 78 NY2d 263, 266 ; People v Jones, 73 NY2d 902, 903 , rearg denied 74 NY2d 651 ; People v Vataj, 69 NY2d 985, 987 ).

2017Where differing *1147 inferences may reasonably be drawn as to whether a witness participated in the offenses, an accomplice-in-fact instruction must be given (see People v Sage, 23 NY3d 16, 23-24 [2014]).

2014Failure to do so in this case was not harmless and constitutes reversible error (see generally People v Crimmins, 36 NY2d 230, 241 [1975]; see also Minarich, 46 NY2d at 971 ; Jenner, 29 NY2d at 697; People v Maynard, 299 AD2d 303 [1st Dept 2002], lv denied 99 NY2d 630 [2003]; People v Torres, 160 AD2d 746 [2d Dept 1990], lv denied 76 NY2d 897 [1990]; People v Conklin, 139 AD2d 156 [3d Dept 1988], lv denied 72 NY2d 1044 [1988]; People v Adams, 185 AD2d 680 [4th Dept 1992], lv denied 80 NY2d 926 [1992]; People v Pelc, 101 AD2d 995 [4th Dept 1984]).

2014Failure to do so in this case was not harmless and constitutes reversible error (see generally People v Crimmins, 36 NY2d 230, 241 [1975]; see also Minarich, 46 NY2d at 971 ; Jenner, 29 NY2d at 697; People v Maynard, 299 AD2d 303 [1st Dept 2002], lv denied 99 NY2d 630 [2003]; People v Torres, 160 AD2d 746 [2d Dept 1990], lv denied 76 NY2d 897 [1990]; People v Conklin, 139 AD2d 156 [3d Dept 1988], lv denied 72 NY2d 1044 [1988]; People v Adams, 185 AD2d 680 [4th Dept 1992], lv denied 80 NY2d 926 [1992]; People v Pelc, 101 AD2d 995 [4th Dept 1984]).

2014Failure to do so in this case was not harmless and constitutes reversible error (see generally People v Crimmins, 36 NY2d 230, 241 [1975]; see also Minarich, 46 NY2d at 971 ; Jenner, 29 NY2d at 697; People v Maynard, 299 AD2d 303 [1st Dept 2002], lv denied 99 NY2d 630 [2003]; People v Torres, 160 AD2d 746 [2d Dept 1990], lv denied 76 NY2d 897 [1990]; People v Conklin, 139 AD2d 156 [3d Dept 1988], lv denied 72 NY2d 1044 [1988]; People v Adams, 185 AD2d 680 [4th Dept 1992], lv denied 80 NY2d 926 [1992]; People v Pelc, 101 AD2d 995 [4th Dept 1984]).

2014I concur in the majority’s holding that the trial court erred in failing to issue the accomplice-in-fact instruction, because there was a reasonable view of the evidence that Mogavero “participated in an offense based upon some of the same facts or conduct which ma[d]e up the offense on trial” (People v Berger, 52 NY2d 214, 219 [1981]).

2014In my view, however, that error was harmless because there was sufficient corroborating evidence tending to connect defendant to the commission of the crime and overwhelming evidence of his guilt.The “corroborative evidence” required by CPL 60.22 (1) “need not be powerful in itself’ (People v Reome, 15 NY3d 188, 191 [2010]).

2008Moreover, there was a wealth of other evidence aside from Knight’s testimony, the cumulative effect of which was that the People provided overwhelming evidence satisfying New York’s corroboration requirement, which requires “only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence” (People v Breland, 83 NY2d 286, 293 [1994]).

2008However, we also find that under the applicable standard for nonconstitutional error, the refusal to give an accomplice-in-fact instruction was harmless because “the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred” (People v Grant, 7 NY3d 421, 424 [2006]). * Here, defendant admitted his involvement in the crime as the shooter and related details of the aftermath of the crime, as corroborated by evidence independent of Knight’s testimony.