Opinion
March 8, 1991
Appeal from the Monroe County Court, Connell, J.
Present — Dillon, P.J., Callahan, Denman, Boomer and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that the trial court erred in failing to instruct the jury that a particular witness was an accomplice as a matter of law. "[A]bsent proof that a person guilty of criminally receiving stolen property aided the thief in the commission of the larceny, the receiver is not an accomplice of the thief (People v Brooks, 34 N.Y.2d 475, 480)" (People v Fort, 145 A.D.2d 983, lv denied 73 N.Y.2d 1014; see, People v Lynch, 158 A.D.2d 472, 473). The evidence presented at trial established that the witness received $50 from the proceeds of the subject crime; there was only speculative evidence at most tying the witness to the commission of the crimes. Thus, at most, the proof was subject to differing inferences with respect to the witness's involvement, and the question of whether he was an accomplice was properly left to the jury's determination (see, People v Vataj, 69 N.Y.2d 985, 987; People v Arce, 42 N.Y.2d 179, 186; People v Basch, 36 N.Y.2d 154, 157).
We also reject defendant's contention that the safe found on his mother's property should have been suppressed (see, People v Reynolds, 71 N.Y.2d 552).
We have examined defendant's other contention and find it to be without merit.