Opinion
November 15, 1989
Appeal from the Erie County Court, Dillon, J.
Present — Denman, J.P., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: In our view, the felony murder and robbery counts of the indictment charged defendant pursuant to Penal Law § 20.00 with accessorial liability for the conduct of the other participant in the crimes. Therefore, the court, in its instructions to the jury, did not constructively amend the indictment (see, People v Grega, 72 N.Y.2d 489; People v Duncan, 46 N.Y.2d 74). Moreover, the fact that an indictment accuses a defendant as a principal does not preclude his conviction as an accessory and a charge based on accessorial conduct is not grounds for reversal (see, People v Grega, 72 N.Y.2d 489, supra; People v Duncan, 46 N.Y.2d 74, supra, rearg denied 46 N.Y.2d 940, cert denied 442 U.S. 910, rearg dismissed 56 N.Y.2d 646).
Defendant did not object to the court's failure to charge the jury on accomplice testimony as it had agreed to do; therefore, the issue has not been preserved for our review (see, People v Whalen, 59 N.Y.2d 273, 280; People v Lipton, 54 N.Y.2d 340, 351). In any event, in light of the overwhelming corroborating proof of defendant's guilt, the failure to charge the accomplice rule is harmless error (see, People v Mayo, 136 A.D.2d 748, lv denied 71 N.Y.2d 971; People v Pyne, 125 A.D.2d 720).
We have reviewed the remaining contentions raised by defendant, including those asserted in defendant's supplemental pro se brief, and find them to be either unpreserved for our review or, where preserved, lacking in merit.