Opinion
June 4, 1990
Appeal from the Supreme Court, Kings County (Juviler, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the court did not err by declining to charge the jury that one of the People's witnesses was, as a matter of law, an accomplice to felony murder. Although the witness in question was part of a group that participated in three earlier robberies, the witness's presence at the scene of a fourth robbery gave rise only to a question of fact as to his accomplice status to felony murder which the court correctly left for the jury's determination (see, People v. Dorta, 46 N.Y.2d 818; People v. Rivera, 154 A.D.2d 630; cf., People v. Cona, 49 N.Y.2d 26). Furthermore, there is no evidence from which it could reasonably be inferred that the witness participated in or aided the defendant in intentional murder or manslaughter (see, People v. Jones, 73 N.Y.2d 902; People v. Maldonado, 123 A.D.2d 788). Accordingly, the trial court correctly instructed the jury that, as a matter of law, the witness was not an accomplice to intentional murder or manslaughter. Bracken, J.P., Eiber, Sullivan and Rosenblatt, JJ., concur.