Opinion
Argued March 27, 1984
Decided May 3, 1984
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Joseph Harris, J.
Douglas P. Rutnik, Public Defender ( Joseph Cannizzearo and Shawn D. Flaherty of counsel), for appellant.
Sol Greenberg, District Attorney ( George H. Barber of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and the matter remitted for a new trial for the reasons stated in the dissenting opinion ( 92 A.D.2d 620, 622) of Presiding Justice A. Franklin Mahoney at the Appellate Division (see, also, People v Ventimiglia, 52 N.Y.2d 350, 361-362). We also note our agreement with the majority's conclusion that the codefendant, who had pleaded guilty to a lesser offense prior to testifying against the defendant at the trial, was an accomplice as a matter of law. Thus the trial court erred in refusing to charge the jury to this effect when requested to do so by the defendant.
We have considered the defendant's other contentions and find them to be without merit.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order reversed and case remitted to Albany County Court for a new trial in a memorandum.