Opinion
July 14, 1992
Appeal from the Oneida County Court, Buckley, J.
Present — Callahan, J.P., Green, Lawton, Boehm and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of robbery in the third degree (Penal Law § 160.05) and grand larceny in the fourth degree (Penal Law § 155.30). Defendant contends that County Court erred in instructing the jury that it could find him guilty as an accessory when the evidence did not support such a charge. He maintains that the People, in the indictment and bill of particulars, alleged that he acted as the principal, and thus the court's instruction on accomplice liability impermissibly changed the theory of prosecution.
The purpose of an indictment is to provide the defendant with fair notice of the accusations against him so that he will be able to prepare a defense (People v. Grega, 72 N.Y.2d 489, 495; People v. Iannone, 45 N.Y.2d 589, 594). "There is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution" (People v Duncan, 46 N.Y.2d 74, 79-80, rearg denied 46 N.Y.2d 940, cert denied 442 U.S. 910; see also, People v. Brown, 159 A.D.2d 956, 957, lv denied 78 N.Y.2d 1009). The fact that an indictment accuses a defendant as a principal does not preclude his conviction as an accessory, and a charge based on accessorial conduct is not ground for reversal (People v. Kimbrough, 155 A.D.2d 935, lv denied 75 N.Y.2d 814). Thus, the court properly instructed the jury on criminal liability for the conduct of another (Penal Law § 20.00).
Defendant concededly failed to raise his claim that the court erred in admitting his written confession into evidence without instructing the jury that the confession must be corroborated. Thus, the issue has not been properly preserved for appellate review (see, CPL 470.05). In any event, there was ample corroboration (see, People v. Lipsky, 57 N.Y.2d 560, rearg denied 58 N.Y.2d 824).