PEOPLE v. WASHINGTON (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a weapon in the second degree (Penal Law former § 265.03[2] ).   We reject the contention of defendant that Supreme Court erred in refusing to submit to the jury the issue whether the People's principal witness was an accomplice.  “To be an accomplice the witness must have taken part in the preparation or perpetration of the crime, with intent to assist in the crime” (People v. Beaudet, 32 N.Y.2d 371, 375, 345 N.Y.S.2d 495, 298 N.E.2d 647), and there is no evidence that the People's principal witness shared defendant's criminal intent or, indeed, was aware that defendant possessed a weapon (see generally People v. Jones, 73 N.Y.2d 902, 539 N.Y.S.2d 286, 536 N.E.2d 615, rearg. denied 74 N.Y.2d 651, 542 N.Y.S.2d 520, 540 N.E.2d 715;  People v. Paul, 298 A.D.2d 849, 747 N.Y.S.2d 615, lv. denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88;  People v. Brazeau, 162 A.D.2d 979, 980, 557 N.Y.S.2d 205, lv. denied 76 N.Y.2d 891, 561 N.Y.S.2d 553, 562 N.E.2d 878).   In any event, we note that the initial statement of the witness to the police upon which defendant relies, i.e., that an individual other than defendant was the shooter, made her at most an accessory after the fact.  “Even assuming, without deciding, that the jury could reasonably have found that the witness hindered prosecution as an accessory after the fact, [we conclude that] this would not bring the witness within the reach of the accomplice corroboration requirement” (People v. Burgess, 40 A.D.3d 322, 322-323, 836 N.Y.S.2d 94, lv. denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895;  see also Paul, 298 A.D.2d at 849, 747 N.Y.S.2d 615).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: