People v. Catter

237 A.D.2d 526, 656 N.Y.S.2d 902, 1997 N.Y. App. Div. LEXIS 2802

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1997
• Status: Published

Opinion

Appeal by the defendant from (1) a judgment of the Supreme Court, Nassau County (Thorp, J.), rendered April 13, 1994, convicting him of robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the County Court, Nassau County (Wexner, J.), entered December 4,1995, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

Ordered that the judgment and order are affirmed.

"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 * * * the question should be left to the jury for its determination” (People v Basch, 36 NY2d 154, 157; see, People v Sweet, 78 NY2d 263; People v Cody, 190 AD2d 684). Contrary to the defendant’s contention, in the instant case it was appropriate for the court to instruct the jury to determine whether a prosecution witness was an accomplice. Further, there is no merit to the defendant’s contention that there was insufficient nonaccomplice evidence to support his conviction (see, People v Daniels, 37 NY2d 624; People v Ascheim, 144 AD2d 680).

Additionally; it was not error for the court to deny the defendant’s motion pursuant to CPL 440.10 without a hearing (see, People v Satterfield, 66 NY2d 796; People v Robinson, 211 AD2d 733).

The defendant’s remaining contentions lack merit. Sullivan, J. P., Santucci, Friedmann and McGinity, JJ., concur.