| People v Martinez |
| 2009 NY Slip Op 01420 [59 AD3d 361] |
| February 26, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gabriel Martinez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
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 toa term of five years, unanimously affirmed.
The court properly declined to submit to the jury the issue of whether one of the prosecutionwitnesses was an accomplice in fact, whose testimony would thus require corroboration(see CPL 60.22). Although the witness accompanied defendant and was present at thescene, defendant's theory under which the witness can be viewed as having participated in theshooting 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, thiswould not make him an accomplice within the meaning of the statute (see People v Burgess, 40 AD3d322 [2007], lv denied 9 NY3d 921 [2007]; People v Stanley, 273 AD2d 132[2000], lv denied 96 NY2d 835 [2001]). In any event, any error in failing to deliver anaccomplice corroboration charge was harmless (see People v Gumbs, 56 AD3d 345, 347-348 [2008]).
Defendant was not prejudiced by portions of the prosecutor's opening statement that set forthalleged hearsay evidence that ultimately did not come into evidence during the trial. The jury ispresumed to have followed the court's instructions that opening statements are not evidence andthat it was required to render a verdict based only on the evidence. In any event, the evidence atissue was generally admissible, not for its truth, but for legitimate nonhearsay purposes (see People v Reynoso, 2 NY3d820 [2004]; People v Tosca, 98 NY2d 660 [2002]; [*2]People v Rivera, 96 NY2d 749 [2001]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias,Nardelli, Buckley and DeGrasse, JJ.