| People v Kaminski |
| 2011 NY Slip Op 09746 [90 AD3d 1692] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John F.Kaminski, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedNovember 5, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in thethird degree.
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 inthe third degree (Penal Law § 140.20), defendant contends that County Court erred indenying his request to charge the jury that a witness was an accomplice as a matter of law. Wereject that contention.
"An 'accomplice' means a witness in a criminal action who, according to evidence adduced insuch action, may reasonably be considered to have participated in . . . [t]he offensecharged[ ] or . . . [a]n offense based upon the same or some of the same facts orconduct [that] constitute the offense charged" (CPL 60.22 [2] [a], [b]; see People vBerger, 52 NY2d 214, 219 [1981]). "If the undisputed evidence establishes that a witness isan accomplice, the jury must be so instructed but, if different inferences may reasonably bedrawn from the proof regarding complicity, according to the statutory definition, the questionshould be left to the jury for its determination" (People v Basch, 36 NY2d 154, 157[1975]). Here, "different inferences could reasonably be drawn regarding the witness's complicityin the [burglary]" (People v Marrero, 272 AD2d 77, 77-78 [2000], lv denied 95NY2d 855 [2000]), and the court therefore properly submitted the issue to the jury (seeBasch, 36 NY2d at 157-158; People v Green, 225 AD2d 1077 [1996], lvdenied 88 NY2d 879 [1996]). In any event, even assuming, arguendo, that the witness wasan accomplice whose testimony required corroboration, we conclude that her testimony wassufficiently corroborated by other evidence tending to connect defendant with the commission ofthe crime (see generally People vReome, 15 NY3d 188, 191-192 [2010]; People v Breland, 83 NY2d 286,292-293 [1994]). Present—Smith, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.