The People of the State of New York, Respondent,
v.
Kevin Tucker, Appellant.
Court of Appeals of the State of New York.
Argued May 24, 1988. Decided June 30, 1988.Jonathan M. Kratter and Philip L. Weinstein for appellant.
Paul T. Gentile, District Attorney (Michael R. Gordon and Billie Manning of counsel), for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The trial court properly concluded that there was no evidence *850 to support an inference by the jury that the People's main corroboration witness, Brian Keith Taylor, had participated in "[t]he offense charged" or "[a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged", such as would warrant submitting to the jury the question of Taylor's complicity (CPL 60.22 [2]). Although Taylor was present in the car at the time the crime occurred, there was no evidence adduced at trial demonstrating that he had participated in planning the robbery; that he had been aware of the criminal enterprise when he entered the car; that he had in any way assisted the perpetrators; or that he had shared in the fruits of the crime. In these circumstances, the trial court correctly held that Taylor's mere presence in the rear seat of the car, without more, did not constitute a reasonable basis for the jury to conclude that he was an accomplice within the meaning of CPL 60.22 (2) (cf., People v Vataj, 69 N.Y.2d 985 [evidence indicated that witness had assisted in the preparation of a murder by placing the murder weapon in a car]; People v Dorler, 53 N.Y.2d 831 [evidence indicated that witness had been present when burglary plans were conceived, that he had intended to participate in the crime, and that he had possibly shared in the fruits]; People v Basch, 36 N.Y.2d 154 [evidence indicated that witness had been asked by burglars to act as a "lookout" and that he had awaited their return]).
Order affirmed in a memorandum.