PEOPLE v. MARTINEZ (2009)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered June 8, 2006, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 5 years, unanimously affirmed.

 The court properly declined to submit to the jury the issue of whether one of the prosecution witnesses was an accomplice in fact, whose testimony would thus require corroboration (see CPL 60.22). Although the witness accompanied defendant and was present at the scene, defendant's theory under which the witness can be viewed as having participated in the shooting is based on speculative inferences, and is contradicted by the trial testimony.   Even if, by discarding the weapon after the shooting, the witness acted as an accessory after the fact, this would not make him an accomplice within the meaning of the statute (see People v. Burgess, 40 A.D.3d 322, 836 N.Y.S.2d 94 [2007], lv. denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007];  People v. Stanley, 273 A.D.2d 132, 712 N.Y.S.2d 6 [2000], lv. denied, 96 N.Y.2d 835, 729 N.Y.S.2d 456, 754 N.E.2d 216 [2001] ).   In any event, any error in failing to deliver an accomplice corroboration charge was harmless (see People v. Gumbs, 56 A.D.3d 345, 347-348, 868 N.Y.S.2d 29 [2008] ).

 Defendant was not prejudiced by portions of the prosecutor's opening statement that set forth alleged hearsay evidence that ultimately did not come into evidence during the trial.   The jury is presumed to have followed the court's instructions that opening statements are not evidence and that it was required to render a verdict based only on the evidence.   In any event, the evidence at issue was generally admissible, not for its truth, but for legitimate nonhearsay purposes (see People v. Reynoso, 2 N.Y.3d 820, 781 N.Y.S.2d 284, 814 N.E.2d 456 [2004];  People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014 [2002];  People v. Rivera, 96 N.Y.2d 749, 725 N.Y.S.2d 264, 748 N.E.2d 1060 [2001] ).

We perceive no basis for reducing the sentence.