People v. Aleschus

— Appeal from a judgment of the County Court of Rensselaer County, rendered May 23, 1979, upon a verdict convicting defendant of the crimes of burglary in the second degree and grand larceny in the third degree. Defendant Albert Aleschus was convicted, following a jury trial, of burglary in the second degree and grand larceny in the third [697] degree. The events on which this conviction is based transpired in December, 1976. On one day that month, defendant went hunting with Donald Whitacre, Gary Jeffries, Kevin Gilman and Todd Edmonds. The latter, an admitted accomplice, testified that the hunting party proceeded to Peters-burg, Rensselaer County, where they broke up into two groups; that Whit-acre and Jeffries went in one direction, and he, defendant, and Gilman went in another direction and this latter group thereafter burglarized a house; that the stolen property was brought back to the vehicle where Whit-acre and Jeffries were already present; and that after the property was loaded into the car, Whitacre and Jeffries were taken home. At trial, the testimony of Whitacre and Jeffries confirmed this version of the events. The court charged the jury, inter alia, that “Edmonds is an accomplice” and “It is a question of fact as to whether Jeffries and Whitacre can be considered accomplices”. In other words, the court left it to the jury to determine whether Jeffries and Whitacre were accomplices. On this appeal, defendant contends that since it was a question of fact as to whether they were accomplices, the court should have further charged that the testimony of one accomplice may not be used to corroborate the testimony of another accomplice. In our view, however, the trial court erred in submitting to the jury, sua sponte, the question of the accomplicity of these two witnesses when this record fails to reveal any involvement whatever by them in the crimes with which the defendant was charged and of which he was convicted. To be an accomplice under CPL 60.-22, a witness must “be ‘in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial.’ Put another way, to be an accomplice, one would necessarily have to be at least potentially subject to sanctions of a penal character for *** participation in the crimes of the defendant on trial” (People v Fielding, 39 NY2d 607, 610). The accomplice’s participation may be “in an offense based upon some of the same facts or conduct which make up the offense on trial” (People v Berger, 52 NY2d 214, 219). Indisputably, upon arriving at the hunting site in the same car, the witnesses Jeffries and Whitacre went off together to hunt on their own, separate and apart from the defendant and his other two companions, Edmonds and Gil-man. Jeffries and Whitacre did not even know about, much less participate in, the commission of the crimes of burglary in the second degree and grand larceny in the third degree, committed by the defendant, until at the end of the day’s hunt the defendant and his two companions, Edmonds and Gil-man, returned with the fruits of the crimes to the car where Jeffries and Whitacre were waiting. Whatever offenses may be charged against Jeffries and Whitacre after that time, it is apparent that they were in no way implicated in any of the facts or conduct which make up the crimes with which the defendant was charged and, therefore, they could not be considered accomplices (People v Spiegel, 60 AD2d 210, affd 48 NY2d 647). In these circumstances, the charge of the trial court that the jury could find Jeffries and Whitacre accomplices as a matter of fact was superfluous and was, therefore, harmless error. Having so concluded, it necessarily follows that there was no need for the trial court to instruct the jury on how it should proceed if it found these witnesses to be accomplices. The jury should have been permitted to evaluate the testimony of Jeffries and Whitacre in the same manner as the testimony of any other nonaccomplice witness and should have been instructed that if believed, their testimony was sufficient to corroborate the testimony of Edmonds, an accomplice, as a matter of law. Since this is effectively what occurred here, we see no need to disturb the conviction, particularly in light of defendant’s failure to except to the [698] 'charge. Judgment affirmed. Mahoney, P.J., Kané and Casey, JJ., concur; Weiss, J., concurs in a separate memorandum; Sweeney, J., dissents and votes to reverse in a memorandum.