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

1441
KA 10-01434
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN F. KAMINSKI, DEFENDANT-APPELLANT.


MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered November 5, 2008. The judgment convicted
defendant, upon a jury verdict, of burglary in the third 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 burglary in the third degree (Penal Law § 140.20),
defendant contends that County Court erred in denying his request to
charge the jury that a witness was an accomplice as a matter of law.
We reject that contention.

     “An ‘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]; see People v Berger, 52 NY2d 214, 219). “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 Basch, 36 NY2d 154, 157). Here, “different
inferences could reasonably be drawn regarding the witness’s
complicity in the [burglary]” (People v Marrero, 272 AD2d 77, 77-78,
lv denied 95 NY2d 855), and the court therefore properly submitted the
issue to the jury (see Basch, 36 NY2d at 157-158; People v Green, 225
AD2d 1077, lv denied 88 NY2d 879). In any event, even assuming,
arguendo, that the witness was an accomplice whose testimony required
corroboration, we conclude that her testimony was sufficiently
corroborated by other evidence tending to connect defendant with the
commission of the crime (see generally People v Reome, 15 NY3d 188,
                                 -2-                          1441
                                                         KA 10-01434

191-192; People v Breland, 83 NY2d 286, 292-293).




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
