THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOHN KAMINSKI DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20), defendant contends that County Court erred in denying his request to charge the jury that a witness was an accomplice as a matter of law.   We reject that contention.

“An ‘accomplice’ means a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in ․ [t]he offense charged[ ] or ․ [a]n offense based upon the same or some of the same facts or conduct [that] constitute the offense charged” (CPL 60.22[2][a], [b];  see People v. Berger, 52 N.Y.2d 214, 219).  “If the undisputed evidence establishes that a witness is an accomplice, the jury must be so instructed but, if different inferences may reasonably be drawn from the proof regarding complicity, according to the statutory definition, the question should be left to the jury for its determination” (People v. Basch, 36 N.Y.2d 154, 157).   Here, “different inferences could reasonably be drawn regarding the witness's complicity in the [burglary]” (People v. Marrero, 272 A.D.2d 77, 77–78, lv denied 95 N.Y.2d 855), and the court therefore properly submitted the issue to the jury (see Basch, 36 N.Y.2d at 157–158;  People v. Green, 225 A.D.2d 1077, lv denied 88 N.Y.2d 879).   In any event, even assuming, arguendo, that the witness was an accomplice whose testimony required corroboration, we conclude that her testimony was sufficiently corroborated by other evidence tending to connect defendant with the commission of the crime (see generally People v. Reome, 15 NY3d 188, 191–192;  People v. Breland, 83 N.Y.2d 286, 292–293).

Frances E. Cafarell

Clerk of the Court