Jury Should Have Been Instructed that It Could Determine Whether Witness Was an Accomplice and Assess the Witness’ Credibility Accordingly/Propriety of Jury Instruction Is Reviewable by the Court of Appeals as a Matter of Law
In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined the trial court committed reversible error by refusing defendant’s request for an “accomplice-in-fact” jury instruction. The defendant’s conviction for manslaughter for participation in a beating death involving several assailants was based in large part upon the testimony of an eyewitness. The Court of Appeals found that there was enough evidence of the eyewitness’ participation in the crime to warrant an instruction which would allow the jury to determine if the eyewitness was an accomplice and to assess the eyewitness’ credibility accordingly. The Court explained the “accomplice as a matter of law” and “accomplice-in-fact” theories:
An accomplice is “a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]). Under our criminal law, “[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 such offense” (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self interest, carries the potential for falsification to avoid prosecution … . * * *
Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement … . * * * In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve… . * * *
We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime …, or otherwise confirms participation or assisting in the charged crime … .
In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness’s participation or intent, such that “different inferences may reasonably be drawn” from the evidence as to the witness’s role as an accomplice … . * * * The propriety of a jury instruction is reviewable as a matter of law… . People v Sage, 2014 NY Slip Op 02214, CtApp 4-1-14