| People v Sage |
| 2012 NY Slip Op 06415 [98 AD3d 1254] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Merlin G.Sage, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), renderedSeptember 15, 2008. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe first 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 ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends that CountyCourt erred in refusing to submit to the jury the issue whether a prosecution witness was anaccomplice. We note at the outset that we do not agree with the People that defendant failed topreserve his contention for our review. We also note our agreement with defendant that, becausethe court did not refuse to submit to the jury the issue whether a prosecution witness was anaccomplice on the basis that there was no evidence that the witness received or expected toreceive a benefit from his testimony, we are barred by CPL 470.15 (1) from affirming thejudgment on that ground (see People vConcepcion, 17 NY3d 192, 194-195 [2011]).
Nevertheless, we conclude that defendant's contention lacks merit. The term accomplice"means a witness in a criminal action who, according to evidence adduced in such action, mayreasonably 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]). " 'If the undisputed evidence establishesthat a witness is an accomplice, the jury must be so instructed but, if different inferences mayreasonably 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 Kaminski, 90 AD3d 1692, 1692 [2011], quotingPeople v Basch, 36 NY2d 154, 157 [1975]). The court properly concluded herein "thatthe witness in question may not reasonably be considered to have participated in the offensescharged or offenses based upon the same or some of the same facts or conduct that constitute theoffenses charged[, and thus that] . . . there was an insufficient basis upon which tosubmit [the witness's] accomplice status to the jury" (People v McPherson, 70 AD3d 1353, 1354 [2010], lvdenied 14 NY3d 890 [2010] [internal quotation marks omitted]; see People v Jones,73 NY2d 902, 903 [1989], rearg denied 74 NY2d 651 [1989]; [*2]People v Tucker, 72 NY2d 849, 849-850 [1988]). We note inany event that there was overwhelming evidence corroborating the testimony of that witness(see People v Hill, 236 AD2d 799, 800 [1997], lv denied 89 NY2d 1036 [1997];People v Kimbrough, 155 AD2d 935, 935 [1989], lv denied 75 NY2d 814[1990]; see also Kaminski, 90 AD3d at 1692; see generally People v Reome, 15 NY3d 188, 191-192 [2010]).Present—Scudder, P.J., Fahey, Lindley, Sconiers and Martoche, JJ.