Summary
In Montgomery, the Court found that the witness was nothing more than "an unwilling bystander to the crime" and, thus, not an accomplice.
Summary of this case from Edwards v. RockOpinion
December 30, 1991
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the court did not err by refusing his request to submit to the jury the factual issue of whether the principal prosecution witness, Deon Murray, was an accomplice under CPL 60.22 (2) (a). Under CPL 60.22 (2) (a), an "accomplice" is someone who
"may reasonably be considered to have participated in
"[t]he offense charged".
Where differing inferences may reasonably be drawn as to whether a witness participated in the offenses, an accomplice in-fact instruction must be given (see, People v Vataj, 69 N.Y.2d 985, 987). There is no evidence in this case from which it can be reasonably inferred that Murray participated in the planning or the execution of the crimes (see, People v Jones, 73 N.Y.2d 902, 903). While Murray admitted to initially lying to investigators of the arson after the defendant fled the scene, such conduct did not constitute participation in the offenses charged. There was nothing in the proof adduced at trial to controvert Murray's account that he was an unwilling by-stander to the crime of arson. Instead, it is abundantly clear that Murray was also a victim of the crimes charged, as his residence and all of his possessions were destroyed by the fire which had been set in his apartment. Thompson, J.P., Bracken, Harwood and Copertino, JJ., concur.