People v. Spiegel , 60 A.D.2d 210 ( 1977 )

OPINION OF THE COURT

Lane, J.

William Spiegel, the owner and operator of a nursing home, was convicted after a jury trial of the crimes of grand larceny in the second degree and grand larceny in the third degree.

The evidence adduced against the defendant Spiegel came primarily from the testimony of his bookkeeper, who, inter alia, identified items and ledger entries. Our dissenting brethren would remand this case for a new trial to submit to the jury as a question of fact whether or not the bookkeeper was an accomplice. We in the majority would affirm the conviction.^*

An accomplice is defined in the Criminal Procedure Law as:

"[A] witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in:

"(a) The offense charged; or

"(b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” (CPL 60.22, subd 2; emphasis added.)

It is clear that the statutory language itself mandates an evidentiary showing that the witness in question may reasonably be considered to have participated in the offense charged. The case law construing the statute confirms this mandate (People v Basch, 36 NY2d 154, 157; People v Baker, 46 AD2d 377, 380).

The testimony of the bookkeeper, Jean Goldstein, takes up over 300 pages of transcript. An analysis of her testimony does not reveal any indication that the bookkeeper knew that any fraud was being perpetrated. Nor does it reveal that the bookkeeper in the performance of her duties was possessed of any criminal intent. She cannot therefore be deemed an accomplice (People v Baker, supra). The dissent points to one allusion to an alleged knowledge of the fraud when a check, drawn on the account of one of the residents of the home, was to be disbursed and the bookkeeper inquired of the defendant Spiegel whether the check was to be divided "fifty-fifty,” between Spiegel and his codefendant Bryant. It would appear that that single item of evidence standing alone is an insufficient evidentiary base to submit to the jury a question of whether or not the bookkeeper was an accomplice.

The indication of the prosecutor, made en passant, that Mrs. Goldstein acted in concert with the defendant does not, even when added to the "fifty-fifty” statement, create an issue of fact as to whether she was an accomplice. Indeed, throughout the trial Mrs. Goldstein was considered by everyone as a mere functionary rather than a participating accomplice. More importantly, it should be noted that not only did the court not instruct the jury with regard to the bookkeeper being an accomplice but no such request to charge was made by defense counsel, nor was any exception in that regard taken to the instructions to the jury given by the Judge. Absent such protest, the defendant has not preserved this issue for appeal (CPL 470.05, subd 2; People v Vidal, 26 NY2d 249; cf. People v Bryant, 31 NY2d 744, 745), and accordingly reversal as a matter of law is not warranted.

Furthermore, reversal in the interest of justice is equally unwarranted in the case at bar. The requirement of corroboration of certain crimes does not constitute an element of the crime itself but is, rather, an additional protective procedural device (People v Johnson, 46 AD2d 55, 58, affd 38 NY2d 956). In any event, in the case at bar, evidence corroborative of the bookkeeper’s testimony, in the form of documentary evidence, was adduced which precludes the necessity of a new trial (People v Johnson, supra; People v Palmer, 26 AD2d 892, 893). In view of the fact that the evidence against Spiegel was overwhelming, and in further view of the fact that there is no significant probability that the jury would have acquitted the defendant had there been an additional charge on the issue of corroboration of the testimony of the bookkeeper, reversal in the interest of justice is not warranted (People v Crimmins, 36 NY2d 230, 243).

Accordingly, the judgment of the Supreme Court, Bronx County (Drohan, J.), rendered September 30, 1975, convicting the defendant after a jury trial of the crimes of grand larceny in the second degree and grand larceny in the third degree, should be affirmed.

* We have simultaneously affirmed the conviction of Spiegel’s codefendant (People v Bryant, 60 AD2d 547).