        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

878
KA 08-02526
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MERLIN G. SAGE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Elma A.
Bellini, J.), rendered September 15, 2008. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of manslaughter in the first degree (Penal Law § 125.20 [1]),
defendant contends that County Court erred in refusing to submit to
the jury the issue whether a prosecution witness was an accomplice.
We note at the outset that we do not agree with the People that
defendant failed to preserve his contention for our review. We also
note our agreement with defendant that, because the court did not
refuse to submit to the jury the issue whether a prosecution witness
was an accomplice on the basis that there was no evidence that the
witness received or expected to receive a benefit from his testimony,
we are barred by CPL 470.15 (1) from affirming the judgment on that
ground (see People v Concepcion, 17 NY3d 192, 194-195).

     Nevertheless, we conclude that defendant’s contention lacks
merit. The term accomplice “means a witness in a criminal action who,
according to evidence adduced in such action, may reasonably be
considered to have participated in . . . [t]he offense charged[] or .
. . [a]n offense based upon the same or some of the same facts or
conduct [that] constitute the offense charged” (CPL 60.22 [2] [a],
[b]). “ ‘If the undisputed evidence establishes that a witness is an
accomplice, the jury must be so instructed but, if different
inferences may reasonably be drawn from the proof regarding
complicity, according to the statutory definition, the question should
be left to the jury for its determination’ ” (People v Kaminski, 90
AD3d 1692, 1692, quoting People v Basch, 36 NY2d 154, 157). The court
                                 -2-                           878
                                                         KA 08-02526

properly concluded herein “that the witness in question may not
reasonably be considered to have participated in the offenses charged
or offenses based upon the same or some of the same facts or conduct
that constitute the offenses charged[, and thus that] . . . there was
an insufficient basis upon which to submit [the witness’s] accomplice
status to the jury” (People v McPherson, 70 AD3d 1353, 1354, lv denied
14 NY3d 890 [internal quotation marks omitted]; see People v Jones, 73
NY2d 902, 903, rearg denied 74 NY2d 651; People v Tucker, 72 NY2d 849,
849-850). We note in any event that there was overwhelming evidence
corroborating the testimony of that witness (see People v Hill, 236
AD2d 799, 800, lv denied 89 NY2d 1036; People v Kimbrough, 155 AD2d
935, 935, lv denied 75 NY2d 814; see also Kaminski, 90 AD3d at 1692;
see generally People v Reome, 15 NY3d 188, 191-192).




Entered:   September 28, 2012                  Frances E. Cafarell
                                               Clerk of the Court
