People v. Usera , 650 N.Y.S.2d 137 ( 1996 )

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered February 26, 1993, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him to a term of 5 to 15 years, to run consecutively with a prior term of 7 to 21 years, unanimously affirmed.

There being sufficient evidence of defendant’s accessorial liability to warrant submission of that theory to the jury, the court’s charge thereon was proper, notwithstanding that the indictment charged defendant only with acting alone (see, People v Rivera, 84 NY2d 766, 771; People v Perez, 194 AD2d 455, 456, lv denied 82 NY2d 758). "There is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution.” (People v Duncan, 46 NY2d 74, 79-80, cert denied 442 US 910). Defendant’s challenge to the imposition of a consecutive sentence is without merit. Concur—Sullivan, J. P., Milonas, Ellerin, Nardelli and Williams, JJ.