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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Eldridge BLALOCK, also known as Eldredge Blaylock, Defendant-Appellant.

Decided: January 25, 2007

SAXE, J.P., MARLOW, NARDELLI, SWEENY, CATTERSON, JJ. Edward D. Wilford and Anthony L. Ricco, New York, for appellant. Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered November 29, 1999, convicting defendant, after a jury trial, of murder in the second degree and conspiracy in the second degree, and sentencing him to concurrent terms of 22 years to life and 5 to 15 years, respectively, unanimously affirmed.

 The court properly declined to submit to the jury the issue of whether the People's main witness on the murder, kidnapping, and attempted rape charges was an accomplice in fact since there was no evidence that she had the requisite intent to commit any offense (see People v. Santana, 82 A.D.2d 784, 440 N.Y.S.2d 668 [1981], affd. 55 N.Y.2d 673, 446 N.Y.S.2d 944, 431 N.E.2d 305 [1981] ).   In any event, were we to find that the court should have given an accomplice in fact charge, we would find the error to be harmless (see e.g. People v. Crespo, 308 A.D.2d 383, 764 N.Y.S.2d 411 [2003], lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364 [2004] ).

 The court properly denied defendant's motion to sever the narcotics conspiracy count from the murder, kidnapping and attempted rape counts.   The counts were properly joined because the drug-related evidence provided the motive for the acts of violence (see People v. Jones, 224 A.D.2d 334, 335, 638 N.Y.S.2d 63 [1996], lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 171, 670 N.E.2d 455 [1996] ).   Moreover, the murder and attempted rape were actually charged in the indictment as overt acts in furtherance of the conspiracy.   Accordingly, there was no basis for a severance (see People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 [1987] ).

During its main charge to the jury, the court gave a circumstantial evidence charge after defining intentional murder.   During deliberations, the jury twice requested the definition of intentional murder.   The court properly declined to reread the circumstantial evidence charge, because it had no reason to “go beyond the jury's request” (People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984];  see also People v. Allen, 69 N.Y.2d 915, 516 N.Y.S.2d 199, 508 N.E.2d 934 [1987] ).