Nor does a grant of immunity alone cause a witness to be an accomplice as a matter of law.") (citations omitted) (emphasis added); People v. Stankewitz, 51 Cal.3d 72, 270 Cal. Rptr. 817, 793 P.2d 23, 35 (1990) ("the fact that a witness has been charged or held to answer for the same crimes as the defendant and then has been granted immunity does not necessarily establish that he or she is an accomplice."); People v. Stafford, 57 A.D.2d 965, 395 N.Y.S.2d 69, 70 (1977) ("Only where it is uncontroverted that a witness was an accomplice.") (citation omitted); People v. Basch, 36 N.Y.2d 154, 365 N.Y.S.2d 836, 325 N.E.2d 156, 158 (1975). See also Coleman v. State, 2000 WL 1840511 *2, 2000 Del. LEXIS 490 *5 (Del. Dec. 4, 2000).
) The charge departed significantly from the plain language of CPL 60.22 (2) (b) and effectively limited the scope of consideration and deprived the jury of its full fact-finding powers. (See, People v. Stafford, 57 A.D.2d 965, 966.) So imperative is the statute that "[w]hen an accomplice is the People's principal witness, a faulty accomplice charge cannot be reckoned harmless error".
The charge clearly left the question of credibility and corroboration to the jury (see, People v Daniels, 37 N.Y.2d 624, 630, supra). The case of People v Stafford ( 57 A.D.2d 965), relied upon by defendant, is distinguishable. There, reversal was required because of the court's bold directive: "If you find * * * defendant was with Henry * * * that would be sufficient to corroborate" (supra, at 966).
Thus, defense counsel failed to register a proper and timely objection to the court's charge with respect to Iorizzo and, therefore, no issue of law with respect thereto has been preserved for our review (CPL 470.05; People v Santiago, 108 A.D.2d 939; see, People v Nuccie, 57 N.Y.2d 818; People v Liccione, 50 N.Y.2d 850). Moreover, this case is distinguishable from People v Stafford, ( 57 A.D.2d 965). In Stafford, where a timely objection was registered, the court's error in charging that a prosecution witness was an accomplice "as a matter of law" was compounded by a further instruction which deprived the jury of its fact-finding function in assessing the existence and sufficiency of corroborative evidence supporting that prosecution witness's testimony.
Such a charge denied the jury the opportunity to decide the factual issue of corroboration ( People v. Goldfeld, supra). Accordingly, County Court's instruction effectively deprived the jury of its fact-finding powers ( People v Stafford, 57 A.D.2d 965, 966, citing People v. Fiore, supra). Despite the fact that defendant did not object to the charge and thereby preserve the error for review, we choose to address this issue as an exercise of discretion in the interest of justice (CPL 470.15 [a]) and conclude that County Court's instruction was error despite the belated curative instruction given at the end of the court's charge.
It is clear that the sufficiency of corroborative evidence presents an issue for jury determination (see People v Fiore, 12 N.Y.2d 188, 201-202). Defendant's reliance on People v Stafford ( 57 A.D.2d 965) is misplaced, since there a combination of errors regarding accomplice testimony was found to have unduly prejudiced the accused. Here, the court did not conclusively deprive the jury of its fact-finding function, and did advise the jury as to the quantum of evidence necessary to sustain a conviction.