
    The People of the State of New York, Respondent, v. Michael White, Appellant.
    Argued March 3, 1970;
    decided April 9, 1970.
    
      Diane A. Lebedeff and Milton Adler for appellant.
    The trial court improperly rejected the requested charge that if the witness Ariel Slowe were found to be an accomplice by the jury, there must be corroborating evidence in order to convict. (People v. Katz, 209 N. Y. 311; Phelps v. United States of Amer., 252 F. 2d 49; People v. Clougher, 246 N. Y. 106; People v. Swersky, 216 N. Y. 471; People v. Diaz, 19 N Y 2d 547.)
    
      Eugene Gold, District Attorney (J. Mitchell Rosenberg of counsel), for respondent.
    The finding by the trial court that the witness, Ariel Slowe, was not an accomplice as a matter of law, was fully warranted by the evidence and there was no need for corroborating evidence in order to convict. (People v. Wood, 93 Misc. 701; People v. Zucker, 20 App. Div. 363, 154 N. Y. 770; People v. Bright, 203 N. Y. 73; People v. Sweeney, 213 N. Y. 37; People v. Swersky, 216 N. Y. 471; People v. Richardson, 222 N. Y. 103; People v. Cohen, 223 N. Y. 406; People v. 
      Jackerson, 247 N. Y. 36; People v. Warder, 231 App. Div. 215; People v. Katz, 209 N. Y. 311.)
   Scileppi, J.

On April 11, 1968 appellant Michael White, William Leroy White and William Wallace Brown (two codefendants not involved in this appeal) were convicted, after a jury trial, of robbery in the first degree, grand larceny in the first degree and assault in the second degree.

At the trial William Lance, the 65-year-old victim, testified that after he had made a condolence call to a friend in Brooklyn, he walked to a subway station at approximately 11:00 p.m. About a block before the station he was approached by one Ariel Alexis Slowe who asked him for carfare. He gave her a subway token and then they walked together about one block to the station. As he was about to descend the stairs, he was suddenly attacked and robbed by three male assailants.

Sgt. John T. Lynch and Patrolman Sam Femminello, the arresting officers, testified that as they were driving by the subway station in a radio car, they saw three men emerge from the subway and assail the victim. They immediately stopped the car and were able to arrest William Leroy White. Appellant and the other codefendant Brown were later arrested on information given by Miss Slowe. At the trial neither the officers nor Mr. Lance were able to identify appellant as one of the attackers.

Miss Slowe testified that she had formerly lived in the neighborhood where the attack had occurred. On the day in question she had visited her sister and friends and in the evening had made a condolence call to the same person the victim had. She was acquainted with the three codefendants and had spoken to one of them during the day. She stated that before meeting Mr. Lance that evening, she loaned all her money to a friend of her brother who was supposed to bring change to her and when he did not return, she saw Mr. Lance and asked him for carfare. She was present during the attack and told the assailants to leave Mr. Lance alone. She was told to shut up. She identified all three defendants at the trial. Appellant’s only witness was a life-long friend who testified that he had seen Miss Slowe drinking with the codefendants during the day.

Before the jury retired, appellant’s attorney requested the court to charge the jury that if they found Miss Slowe was an accomplice, corroboration connecting defendants to the commission of the crime would then be required. The court ruled that: There is no evidence [in the record] of any kind or nature which will support a finding of this kind and for that reason it will not so charge ”.

Thus, the sole issue raised on this appeal is whether it was error for the trial court to refuse to give the requested charge. The test of whether a witness is an accomplice is whether he can be indicted as a principal (People v. Kupperschmidt, 237 N.. Y. 463), therefore, there must be a showing that the witness took part in the preparation or perpetration of the crime with the intent to assist therein (People v. Rossi, 11 N Y 2d 379; People v. Cohen, 223 N. Y. 406), or that the witness counseled, induced or encouraged the crime (People v. Clougher, 246 N. Y. 106).

It is our opinion that in the instant case, it was not necessary for the trial court to give the requested accomplice charge because there is no evidence in the record before us which would support a finding that the witness was an accomplice (People v. Youlio, 243 N. Y. 519). Her mere presence on a public street alone or her borrowing of a token from the victim would not have allowed the jury to infer that she participated in the commission of the crime. The token was borrowed a block away from the subway .station where the attack occurred and the victim was in no way distracted or misled by her for any purpose connected with the crime. The victim was not lured by her into a deserted area and there is no indication in the record that she forced or persuaded him to go to the station. Indeed, he would have gone that way even if he had never met her. Nor is the fact that she was acquainted with the perpetrators of the crime probative of her involvement or intent to aid, prepare or perpetrate the crime.

Thus, on the record before us, we hold as a matter of law, that the witness was not an accomplice (People v. Rossi, supra). Consequently, it was not error for the trial court to refuse to charge as requested. If we were to hold to the contrary, an accomplice charge would be required whenever a mere eyewitness testified against defendants in a criminal prosecution.

Accordingly, the judgment appealed from should be affirmed.

Burke, J. (dissenting).

The judgment appealed from should be reversed and a new trial ordered upon the ground that the trial court committed prejudicial error in refusing the request to charge the jury that, if it found as a fact that the witness Slowe was an accomplice, there must he independent evidence corroborating her testimony. It has long been the law in this State that accomplice testimony must he corroborated (Code Crim. Pro. § 399) and the cases applying the mandate of the statute in this court are numerous. In the present case, the trial court refused the request to charge upon the stated ground that ‘ ‘ there is no evidence of any kind or nature which will support a finding of this kind and for that reason [the court] will not so charge.” The court thus necessarily decided as a matter of law that the witness could not be found to he an accomplice. The witness’ own testimony, however, gave rise to the possibility that the jury could reasonably have found that she had aided and assisted the defendants in perpetrating the robbery by ‘1 fingering ” the intended victim; her testimony could also have permitted the jury to infer that she stood watch for the defendants while they accosted the victim and that her warning in fact enabled them to escape the scene temporarily. It is true that there was no direct evidence as to the witness’ participation in the planning or effectuation of the robbery, but it is also true that the internal inconsistencies in the witness’ testimony as to her being with the defendants at the times in question and as ¡to the reasons for her approaching the victim and accompanying him near the scene of the attack by the defendants raise a reasonable doubt as to her participation in the crimes of which the defendants stand convicted. Such a reasonable doubt is sufficient to preclude a finding, as a matter of law, that the witness was not an accomplice. “ When questions of fact arise whether a witness has done any of these things [counselled, induced or encouraged the crime] and different inferences can he drawn, it is the jury and not the court that must determine [the question] ”. (People v. Clougher, 246 N. Y. 106, 110-111 [emphasis added]; People v. Jackerson, 247 N. Y. 36; People v. Bunn, 243 N. Y. 381, 384). In this regard, it is important to distinguish between a finding that the evidence mandates the refusal of the requested instruction because the only evidence in the case indicates that the witness clearly is not an accomplice (see People v. Swersky, 216 N. Y. 471, 478) and a finding in a case such as this where there is no clear evidence in either direction. In a case such as this, where the evidence could reasonably lead to conflicting inferences as to the witness ’ status as an accomplice or an innocent eyewitness, it is clear error to decide the issue as a matter of law.

Moreover, the prejudice resulting from such refusal to charge is clear since the witness’ testimony was the only evidence linking this appellant to the crime, both the victim and the police officers being unable to identify him as one of the perpetrators. Accordingly, the refusal to charge as requested was prejudicial error and warrants a reversal of the judgment of conviction and the grant of a new trial. '

Chief Judge Fuld andJudges Bergan, Breitel, Jasen and Gibson concur with Judge Scileppi; Judge Burke dissents and votes to reverse in a separate opinion.

Judgment affirmed.  