Opinion
December 29, 1992
Appeal from the Supreme Court, New York County (Allen Alpert, J.).
Contrary to defendant's contention, the jury was properly permitted to consider whether defendant was guilty of the crimes charged under the principle of accomplice liability. The language of the indictment indicated that the defendant was being charged with liability for not only his actions, but also those of another. This language further made clear that only a single pistol was used during the robbery. The defendant was tried for the same crimes for which the grand jury chose to indict him (People v Grega, 72 N.Y.2d 489, 495-496), and there is no distinction between liability as a principal and criminal culpability as an accessory. 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, cert denied 442 U.S. 910). It is uncontroverted that defendant was present when his cohort produced the weapon and proceeded to demand money and jewelry from the victims. Indeed, the defendant himself assisted in the taking of property and fled with his armed cohort, eventually pulling a bystander from a vehicle in order to facilitate their escape. Whether the defendant possessed the requisite mental culpability to warrant the conviction was a question for the jury to determine (see, People v Steinberg, 170 A.D.2d 50, 69, affd 79 N.Y.2d 673), and guilt was proven beyond a reasonable doubt, the jury having been properly permitted to consider whether defendant was guilty under the principle of accomplice liability (cf., People v Duncan, supra).
Nor can the court's Sandoval ruling be deemed erroneous as having deprived defendant of the only material source of testimony in support of his defense, this being but one factor to consider (People v Grice, 177 A.D.2d 271, lv denied 79 N.Y.2d 857 ). The court's carefully reasoned compromise, rendered only after expressly considering all the relevant factors, was well within its discretion (People v Sandoval, 34 N.Y.2d 371). Defendant's past acts of theft bear on his credibility (People v Greer, 42 N.Y.2d 170, 176), and the court was not requested to direct the prosecutor to inquire only if defendant had ever been convicted of a felony (People v Bennette, 56 N.Y.2d 142, 147).
Nor can it be said that the prosecution unfairly responded to the defense arguments on summation (see, People v Marks, 6 N.Y.2d 67, 77-78, cert denied 362 U.S. 912), or that the court's instructions were unfair or inaccurate (see, People v Saunders, 64 N.Y.2d 665, 667).
Concur — Sullivan, J.P., Wallach, Ross and Asch, JJ.