Opinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed. Memorandum: The prosecution failed to present legally sufficient evidence to support defendant's conviction as an accessory to attempted robbery. The record, viewed in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620, 621), fails to demonstrate that defendant assisted codefendant Howard Peoples in the assault and attempted robbery of complainant or that he shared Peoples' intent to attempt the robbery (see, People v. Letizia, 122 A.D.2d 555, lv denied 68 N.Y.2d 814). Defendant's presence as a guest in complainant's apartment at the time of Peoples' conduct does not constitute a sufficient basis for the imposition of accessorial liability (see, People v. Perniciaro, 58 N.Y.2d 751; People v. Burke, 126 A.D.2d 938).