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JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESERVED THE ISSUE FOR APPEAL.

The Third Department, reversing defendant’s conviction, determined the jury should have been instructed a witness (Perkins) was an accomplice as a matter of law. The defendant was charged and convicted of tampering with evidence (attempting to dispose of a jacket allegedly worn when defendant committed murder). It was alleged defendant instructed Perkins to get rid of his boots. The court noted that defendant’s request for the instruction, made during deliberations in response to a jury note, preserved the issue for appeal:

… [I]t is well settled that, “to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime[] for which the defendant is on trial” … . Thus, “a ‘witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he [or she] participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged'” … .

Perkins’ testimony established that she picked defendant up at the same location that the jacket was later found and she subsequently disposed of defendant’s boots pursuant to his direction. In addition, she was arrested the same day as defendant, was charged with a felony, entered into a cooperation agreement with the People and, pursuant to that agreement, pleaded guilty to a misdemeanor in exchange for her truthful testimony against defendant. When defendant requested the accomplice charge, he stated that Perkins had pleaded guilty to “obstructing governmental administration . . . in exchange for not being prosecuted for tampering.” In light of this, we find that Perkins was an accomplice as a matter of law “since [s]he could have been (and was) charged with a crime ‘based upon some of the same facts or conduct’ upon which the charge[] against defendant [was] based” … . People v Whyte, 2016 NY Slip Op 07880, 3rd Dept 11-23-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/APPEALS (CRIMINAL LAW, REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)

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