Opinion
March 8, 1996
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Pine, J.P., Wesley, Callahan, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of murder in the second degree (Penal Law § 125.25; § 20.00) arising out of his participation in the shooting of a man in a parking lot outside a motel in the City of Buffalo. Viewing the evidence in the light most favorable to the People ( see, People v Contes, 60 N.Y.2d 620, 621), we conclude that the evidence at trial is legally sufficient to support defendant's conviction ( see, People v Bleakley, 69 N.Y.2d 490, 495). There is no inconsistency in the jury's conclusion that defendant was guilty of murder as an accomplice ( see, Penal Law § 20.00) based upon his activities as a lookout and the driver of the getaway car, and the court's refusal to instruct the jury that key prosecution witness Nyree Zelenka was an accomplice as a matter of law. Because the testimony concerning the role, if any, that Zelenka played in the murder is susceptible to different interpretations, Supreme Court properly instructed the jury that it could determine whether she was an accomplice as a matter of fact ( see, People v Basch, 36 N.Y.2d 154, 157; People v Green, 225 A.D.2d 1077 [decided herewith]).
We have reviewed the other issues raised by defendant on appeal and conclude that they are without merit.