Opinion
December 26, 1991
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was one of two codefendants charged with felony murder and tried separately. He argues on appeal that the People's failure to specify in their bill of particulars which of the codefendants committed the homicidal act deprived him of his constitutional and statutory right of fair notice of the substance of the felony murder charge. Penal Law § 125.25 (3) imposes equal liability both on the principal actor who caused the death and on the accomplice (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, CPL art 125, at 495). Moreover, defendant's ability to advance the affirmative defense was not impaired because he in fact did so. Defendant's additional arguments, that the jury verdict was defective and that he was prejudiced at sentencing by reason of the same failure to specify which codefendant was the principal actor, are unpreserved and we decline to reach them in the interest of justice.
We reject defendant's argument that the court's charge with respect to the "in furtherance" requirement of felony murder was improper (see, People v Dering, 140 A.D.2d 538, lv denied 72 N.Y.2d 956; see also, People v Joyner, 26 N.Y.2d 106, 108-109). Finally, contrary to defendant's argument on appeal, we find that the court's charge on flight was balanced and fair (cf., People v Williamson, 40 N.Y.2d 1073; People v Bell, 38 N.Y.2d 116).