Opinion
Argued September 3, 1982
Decided October 5, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN S. THORP, JR., J.
Robert R. Mullery, Michael J. Obus and Matthew Muraskin for appellant.
Denis Dillon, District Attorney ( Denise Parillo and Anthony J. Girese of counsel), for respondent.
MEMORANDUM.
Order of the Appellate Division should be affirmed.
Assuming, arguendo, that the trial court's definition of accomplice and its charge that witness Comacho was an accomplice as a matter of law could have been understood as determining that defendant participated in the crime charged, the court's subsequent instruction on the limited use of accomplice testimony in the jury's determination acted to dispel any misconception the jury may have had regarding its function in determining the defendant's guilt. In the context of the complete charge, the trial court fairly advised the jurors that there could not be a conviction solely on the testimony of an accomplice, but that there had to be other evidence connecting the defendant with the commission of the crime charged. Under these circumstances, it cannot be said that the trial court, in so instructing the jury, thereby usurped their fact-finding function.
Defendant's additional arguments have been considered and we find them to be without merit.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part.
Order affirmed in a memorandum.