Opinion
December 7, 1972
Judgment, Supreme Court, Bronx County, rendered June 25, 1971, convicting defendant, after jury trial, of murder and possession of a weapon as a felony, unanimously reversed, on the law, and a new trial directed. The defendant was indicted for intentional murder and felonious possession of a weapon. The proof and the course of the trial plainly indicated the whole episode, which resulted in murder, was hatched earlier in a bar, and the plan principally involved the defendant and an accomplice, one Carter, who provided the gun, embarked on a "stick-up" together with the defendant, and who participated in the destruction of the gun, after the homicide. Under such circumstances, we hold that the accomplice, Carter, who testified at the trial, was an accomplice as a matter of law. ( People v. Wyler, 37 A.D.2d 375.) The Trial Justice, however, erroneously permitted this issue to go to the jury as a question of fact, as though the main issue was whether a felony murder had been committed, notwithstanding there was no felony murder charged in the indictment.
Concur — Stevens, P.J., McGivern, Nunez, Tilzer and Capozzoli, JJ.