
    The People of the State of New York, Respondent, v Samuel Hill, Also Known as Samuel Dunwoody, Appellant.
    [639 NYS2d 596]
   Memorandum: Defendant was convicted, following a jury trial, of murder in the second degree (Penal Law § 125.25 [1]; § 20.00) arising out of his participation in the shooting of a man in a parking lot outside a motel in the City of Buffalo. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), we conclude that the evidence at trial is legally sufficient to support defendant’s conviction (see, People v Bleakley, 69 NY2d 490, 495). There is no inconsistency in the jury’s conclusion that defendant was guilty of murder as an accomplice (see, Penal Law § 20.00) based upon his activities as a lookout and the driver of the getaway car, and the court’s refusal to instruct the jury that key prosecution witness Nyree Zelenka was an accomplice as a matter of law. Because the testimony concerning the role, if any, that Zelenka played in the murder is susceptible to different interpretations, Supreme Court properly instructed the jury that it could determine whether she was an accomplice as a matter of fact (see, People v Basch, 36 NY2d 154, 157; People v Green, 225 AD2d 1077 [decided herewith]).

We have reviewed the other issues raised by defendant on appeal and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Forma, J. — Murder, 2nd Degree.) Present — Pine, J. P., Wesley, Callahan, Davis and Boehm, JJ.  