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ALTHOUGH AN INDICTMENT NEED NOT ALLEGE ACCESSORIAL LIABILITY TO BE LEGALLY SUFFICIENT; WHERE THERE IS NO EVIDENCE A DEFENDANT ACTED AS A PRINCIPAL THE JURY MUST BE INSTRUCTED ON ACCESSORIAL LIABILITY; THE FAILURE TO SO INSTRUCT THE JURY HERE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the failure to instruct the jury on accessorial liability rendered the conviction against the weight of the evidence. The defendant and a companion were involved in an altercation with the victim. The companion slashed the victim and struck the victim with a baseball bat. There was no evidence defendant attacked the victim. The court noted that the indictment need not allege accessorial liability to be legally sufficient, but the jury must be instructed on the theory where there is no evidence a defendant acted as a principal:

The circumstances supported the inference that defendant was guilty of acting in concert in the attack, but undisputedly failed to support liability as a principal, that is, for personally attacking the victim. However, the prosecutor did not request, either before or after the court’s charge, that the court instruct the jury regarding accessorial liability (see Penal Law § 20.00), and the court did not give such an instruction.

Because there is “no legal distinction between liability as a principal or criminal culpability as an accomplice” … , an indictment need not contain any language relating to accessorial liability. However, this does not mean that a conviction may be sustained on an acting-in-concert theory when no such theory was submitted to the jury … . People v Ballo, 2021 NY Slip Op 00810, First Dept 2-9-21

 

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