Appeal by the defendant from a
Ordered that the judgment is affirmed.
The evidence adduced at trial established that after the police stopped a car which was owned and driven by Michael Maffatore and in which the defendant was a passenger, they found a loaded and operable gun and a holster under the front passenger seat. Thereafter, the defendant and Maffatore were both indicted for criminal possession of a weapon in the third degree in connection with the finding of the gun. The charges against Maffatore were subsequently dismissed upon motion by the District Attorney in return for his promise to testify against the defendant. At trial, Maffatore testified that the gun was the defendant’s, and that while he (Maffatore) was driving, he saw the defendant take out the gun and holster from under his jacket and throw it under his seat.
On appeal, the defendant contends that the trial court committed reversible error when it denied his request that the jury be charged that Maffatore was an accomplice as a matter of law whose testimony required corroboration, and instead charged the jury that whether or not Maffatore was an accomplice was a question of fact for it to decide. We reject the defendant’s claim, and note that in view of the fact that Maffatore was linked to the gun only by the presumption found in Penal Law § 265.15, Maffatore’s self-exculpatory testimony gave rise to an issue of fact as to Maffatore’s status as an accomplice which was properly left for the jury to determine (see, People v Cobos,
We note that the trial court in its Sandoval ruling should have reduced the number of convictions into which inquiry could be made (see, People v Sandoval,
We have considered the defendant’s remaining claims, including those raised in his supplemental pro se brief, and we find that they are without merit. Niehoff, J. P., Rubin, Eiber and Kunzeman, JJ., concur.