The fact that Owens was not indicted for the murder of Werts is not controlling. What is controlling is that there is sufficient in the record to charge him either as a principal or an accessory. (See People v. Jackson, 247 N.Y. 36; People v. White, 26 N.Y.2d 276; People v. Bell, 32 A.D.2d 781.) Owens participated in the plan to kidnap Werts since it was he who lured Werts into the car for the purpose of feloniously assaulting him. All four were parties to this conspiracy and this plan was never abandoned by Owens. Owens was armed and even helped to clean up evidence of the crime. It was in furtherance of this conspiracy that Werts was killed.
II. Supreme Court erred in failing to instruct the jury that Amber Roche was an accomplice as a matter of law to the K-Mart burglary. ( People v Berger, 52 NY2d 214; People v Cohen, 73 AD2d 603; People v Cona, 49 NY2d 26; People v Rugg, 91 AD2d 692; People v Bell, 32 AD2d 781.) III.
" 562 S.W.2d 207, 209. See People v. Bell (1969), 32 A.D.2d 781, 781-82, 302 N.Y.S.2d 946, 948 ("It is apparent that, despite the trial court's attempt to accomplish an effective redaction of the confessing defendant's statements, the jury could not help but conclude that the `friends' of Bell were in fact the codefendants"). Use of "friends" in redacted statements was not limited to those three circumstances previously quoted, notwithstanding the trial court's directions that "friends" was not to be used in redacting the admissions.
(250 App. Div., at p. 588, supra.) Thus, to be an accomplice, as stated above, it is enough to assist in the preparation of the crime, and one need not be present at nor direct the act completing the crime (see, also, People v. Bell, 32 A.D.2d 781, 782). Specifically, it has been held that one may be guilty of felony murder, even if one were some distance from the scene of the crime at the time of the killing (see People v. Lunse, 278 N.Y. 303, 312; People v. Michalow, 229 N.Y. 325, 330). The prosecution relies primarily on cases establishing that to be an accomplice one must intend to assist in the crime (e.g., People v. Wheatman, 31 N.Y.2d 12, 22, supra; People v. Cohen, 223 N.Y. 406, 425, supra).
). If the undisputed evidence establishes that a witness is an accomplice, the jury must be so instructed (supra), and the failure to do so upon request necessarily constitutes harmful error (People v. Minarich, 46 N.Y.2d 970). If different inferences can reasonably be drawn from the proof regarding complicity, the question should be left to the jury (People v. Basch, supra), and the failure to do so upon request constitutes harmful error unless corroborative proof adduced at the trial overwhelmingly points in the direction of the defendant's guilt (People v. Crimmins, 36 N.Y.2d 230, 241-242; see, People v. Werner, 55 A.D.2d 317, 321; People v. Ramirez, 94 A.D.2d 965). The People do not argue, and we are aware of no case law holding, that different principles apply where, as here, the failure to charge the accomplice-corroboration rule has not been preserved as a question of law pursuant to CPL 470.05 (2) (see, People v. Ramos, 68 A.D.2d 748, 753-754; People v. Johnson, 6 A.D.2d 181; People v. Bell, 32 A.D.2d 781; cf. People v. Spiegel, 60 A.D.2d 210, 212-213, affd 48 N.Y.2d 647). We hold that when the case against the defendant rests substantially on the testimony of a witness who is an accomplice as a matter of law, or who may be one as a matter of fact, it is best that the court offer to charge the accomplice-corroboration rule if not requested by the defendant.
In light of the lack of independent corroborative evidence tending to connect either of these defendants to the crime, a new trial is required. Additionally, even if corroborative evidence could be found in this record, we could not conclude that the failure to charge the jury was harmless given the impossibility of knowing what, if any, of the corroborative evidence was credited by the jury (see People v Werner, 55 A.D.2d 317; see, also, People v Minarich, 46 N.Y.2d 970; People v Bell, 32 A.D.2d 781). The other points raised by the defendants present no basis for reversal.
Derek Elms, who testified for the prosecution, had been indicted for the same crimes with which defendant was charged, and was named as a coconspirator in the indictment against defendant. As such, he was an accomplice as a matter of law (see People v. Korjus, 54 A.D.2d 720), so that his testimony had to be corroborated (see CPL 60.22), and the trial court erred in allowing the jury to decide whether he was an accomplice (see People v. Bell, 32 A.D.2d 781). An error such as this is necessarily harmful (see People v. Minarich, 46 N.Y.2d 970; People v. Jenner, 29 N.Y.2d 695), and requires a reversal. Damiani, J.P., O'Connor, Lazer and Rabin, JJ., concur.
" In People v. Bell ( 32 A.D.2d 781) the defendant had been convicted of robbery in the first degree and related crimes. The court found that evidence against the defendant was received from a witness who was an accomplice as a matter of law.
Furthermore, and contrary to the People's contention, the seven appellants herein are not precluded from asserting on appeal that Buchalski was an accomplice as a matter of law with respect to his testimony as to recorded and incriminatory statements allegedly made by them after he was pressured into becoming an informant, despite the fact that no exception was taken to the trial court's failure to charge in that regard (cf. People v Bell, 32 A.D.2d 781, 782). In my opinion, since Buchalski's testimony was that of an accomplice as to conversations with these appellants after he agreed to co-operate with the investigation, there was insufficient trial evidence adduced to support their convictions.
Thus, from this vantage point, it cannot be ascertained whether the jury convicted appellant solely on Muller's or Longtin's testimony, or on a combination of both. Not knowing the basis for such determination, it thus cannot be stated with any reasonable degree of certainty that the jury would have returned a guilty verdict as to appellant had the court charged that Longtin was an accomplice as a matter of law (cf. People v Bell, 32 A.D.2d 781, 782). In my opinion, and despite the possible existence of sufficient independent corroborative evidence of appellant's guilt, for this court to be consistent with out determination in People v Schlicteroll ( 59 A.D.2d 545), and because the interest of justice compels equal consideration of appellant, this court should likewise reverse this conviction and order a new trial.