Opinion
December 29, 1989
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The defendant was not denied a fair trial by the court's instruction to the jurors concerning accessorial liability. The complainant testified on direct examination that he was attacked from behind and could not see his assailant's face. However, on cross-examination of the complainant and the arresting police officer, there was some indication that the complainant might have initially stated that he was attacked by two assailants rather than one. Although the prosecution proceeded on the theory that the crime was committed by a single perpetrator, the instruction to the jurors on acting in concert, even if unwarranted, could not have prejudiced the defendant since there is no distinction between liability as a principal and criminal culpability as an accessory (see, People v Duncan, 46 N.Y.2d 74, 79-80, cert denied 442 U.S. 910; People v Lewis, 105 A.D.2d 758; People v Licausi, 98 A.D.2d 751, 752; cf., People v Roberts, 72 N.Y.2d 489, 497-500; People v Hernandez, 59 N.Y.2d 881). Thompson, J.P., Brown, Lawrence and Rubin, JJ., concur.