AD4 order dated September 28, 2012, affirming judgment of conviction. Decision below: 98 AD3d 1254, 951 NYS2d 287. Smith, J., granted leave April 10, 2013.

ISSUE PRESENTED: Whether the trial court erred in refusing to charge the jury that the People’s key witness was an accomplice as a matter of law

Factual Background: Defendant was accused of beating Merced to death after an evening of drinking led to a heated argument. At defendant’s trial, the People presented the testimony of Mogavero, who claimed that he had observed, but had not participated in, the attacks that led to Merced’s death. While Mogavero admitted that he had punched Merced in the face and neck, claiming that he’d done so to protect himself, he testified that the “beating” of Merced did not “beg[i]n in earnest” until a later point. Mogavero insisted that, after hitting Merced twice before the attack began, he “backed up and kept out of it.” Mogavero testified that, after the initial beating, Merced was carried to a nearby porch. At that point, according to Mogavero, defendant struck Merced on the head and neck with a mop handle, using it like a baseball bat, and causing Merced’s death.

Defendant asked the court to give an accomplice as a matter of-fact-charge, which would have required that, if the jury had found Mogavero to be an accomplice, it would have had to find that his testimony was corroborated in order to convict. The court declined, and defendant was convicted of first-degree manslaughter.

Held: The Court agreed with defendant that, because there was “sufficient evidence to create a factual question as to Mogavero’s participation in the beating death of Merced,” it was error to refuse counsel’s request. Because the jury could have found inadequate corroboration, the error was not harmless, and a new trial was ordered.

CAL observes: This case puts People v. Rivera, decided April 8 (discussed supra), where the Court rejected defendant’s request for a charge down to second-degree manslaughter, into sharp relief. Both cases involved the Court’s obligation to determine whether a charge was warranted by the facts. In Rivera, the court found no reasonable view of the evidence that the defendant could have acted recklessly in causing death by two stab wounds, because the forensic evidence was conclusive on the issue of intent. Here, the Court found that the accomplice-in-fact charge was warranted, because there was a view of the evidence supporting it. While a finding that Mogavero’s admitted conduct in striking Merced presented an issue of fact as to whether Mogavero was an accomplice would have been unremarkable, the Court went much further. Without any apparent record support, the Court stated that the jury could have determined that it was Mogavero, not Merced, that had hit Merced with the mop handle and caused his death. It is difficult to reconcile these disparate results: in Rivera, the Court excluded the reasonable possibility that defendant had acted recklessly --- an inference that is uniquely hard to prove. Here, the Court seems to have speculated a role for Mogavero’s involvement in the killing without any record support.