Opinion
May 25, 1983
Appeal from the Onondaga County Court, Burke, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Moule and Schnepp, JJ.
Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: Defendants' convictions of criminal possession of stolen property in the second degree must be reversed due to the trial court's failure to submit to the jury the question of fact as to whether the prosecution's two central witnesses were accomplices. A witness may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based upon some of the same facts or conduct which make up the offense on trial ( People v Berger, 52 N.Y.2d 214, 219; CPL 60.22, subd 2). From the facts developed at trial, it appears that the two witnesses knowingly possessed stolen property. Whether they possessed it with the intent to impede its recovery or with the intent to benefit themselves or someone other than the rightful owner is a question of fact which should have been determined by the jury (see Penal Law, § 165.55). CPL 60.22 (subd 1) mandates that a defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of the offense. In light of the lack of independent corroborative evidence tending to connect either of these defendants to the crime, a new trial is required. Additionally, even if corroborative evidence could be found in this record, we could not conclude that the failure to charge the jury was harmless given the impossibility of knowing what, if any, of the corroborative evidence was credited by the jury (see People v Werner, 55 A.D.2d 317; see, also, People v Minarich, 46 N.Y.2d 970; People v Bell, 32 A.D.2d 781). The other points raised by the defendants present no basis for reversal.