Opinion
November 29, 1993
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
Although the indictment did not charge the defendant with accessorial liability, the trial court properly permitted proof that tended to establish that the defendant acted in concert with others in the victim's shooting (see, People v Brooks, 161 A.D.2d 655; People v Coker, 135 A.D.2d 723; People v Monahan, 114 A.D.2d 380). Moreover, the trial court's charge on acting in concert did not prejudice the defendant, since "[t]here 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, cert denied 442 U.S. 910; see also, People v Rogers, 177 A.D.2d 666, 667; People v Smith, 156 A.D.2d 756). Further, in the present case, it cannot be said that the defendant was denied fair notice of the charges against him, since he received notice prior to trial that the People would be introducing evidence tending to establish that he was an accomplice to the shooting of the victim and was given an opportunity to prepare his defense accordingly (see, People v Gaskin, 184 A.D.2d 525; cf., People v Hemingway, 179 A.D.2d 898).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Bracken, J.P., Balletta, O'Brien and Copertino, JJ., concur.