People v. Kimbrough

Nov 15, 1989
Versions:155 A.D.2d 935
547 N.Y.S.2d 756
1989 N.Y. App. Div. LEXIS 14793

— Judgment unanimously affirmed. Memorandum: In our view, the felony murder and robbery counts of the indictment charged defendant pursuant to Penal Law § 20.00 with accessorial liability for the conduct of the other participant in the crimes. Therefore, the court, in its instructions to the jury, did not constructively amend the indictment (see, People v Grega, 72 NY2d 489; People v Duncan, 46 NY2d 74). Moreover, the fact that an indictment accuses a defendant as a principal does not preclude his conviction as an accessory and a charge based on accessorial conduct is not grounds for reversal (see, People v Grega, 72 NY2d 489, supra; People v Duncan, 46 NY2d 74, supra, rearg denied 46 NY2d 940, cert denied 442 US 910, rearg dismissed 56 NY2d 646).

Defendant did not object to the court’s failure to charge the jury on accomplice testimony as it had agreed to do; therefore, the issue has not been preserved for our review (see, People v Whalen, 59 NY2d 273, 280; People v Lipton, 54 NY2d 340, 351). In any event, in light of the overwhelming corroborating proof of defendant’s guilt, the failure to charge the accomplice rule is harmless error (see, People v Mayo, 136 AD2d 748, lv denied 71 NY2d 971; People v Pyne, 125 AD2d 720).

We have reviewed the remaining contentions raised by defendant, including those asserted in defendant’s supplemental pro se brief, and find them to be either unpreserved for our review or, where preserved, lacking "in merit. (Appeal from judgment of Erie County Court, Dillon, J. — murder, second degree; robbery, first degree.) Present — Denman, J. P., Boomer, Green, Pine and Davis, JJ.