CJI2d[NY] Accessorial (Accomplice) Liability

Our law recognizes that two or more individuals can act jointly to commit a crime, and that in certain circumstances, each can be held criminally liable for the acts of the other(s). In that situation, those persons can be said to be "acting in concert" with each other.²

Our law defines the circumstances under which one person may be criminally liable for the conduct of another. That definition is as follows:

When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.³

Note: Add as appropriate: ⁴

Under that definition, mere presence at the scene of a crime, even with knowledge that the crime is taking place, (or mere association with a perpetrator of a crime,) does not by itself make a defendant criminally liable for that crime.

In order for the defendant to be held criminally liable for the conduct of another/others which constitutes an offense, you must find beyond a reasonable doubt:

(1) That he/she solicited, requested, commanded, importuned, or intentionally aided that person [or persons] to engage in that conduct, and

(2) That he/she did so with the state of mind required for the commission of the offense [that is, that he/she acted (e.g. intentionally, recklessly, with criminal negligence)].

If it is proven beyond a reasonable doubt that the defendant is criminally liable for the conduct of another, the extent or degree of the defendant's participation in the crime does not matter. A defendant proven beyond a reasonable doubt to be criminally liable for the conduct of another in the commission of a crime is as guilty of the crime as if the defendant, personally, had committed every act constituting the crime.⁵

The People have the burden of proving beyond a reasonable doubt that the defendant acted with the state of mind required for the commission of the crime, and either personally, or by acting in concert with another person, committed each of the remaining elements of the crime.⁶

[Note: Add here and/or where the court instructs the jury on the need for a unanimous verdict:

Your verdict (on each count you consider), whether guilty or not guilty, must be unanimous. In order to find the defendant guilty, however, you need not be unanimous on whether the defendant committed the crime personally, or by acting in concert with another, or both.⁷]

Note: Add if appropriate:

As you know, the People contend that the defendant acted in concert with a person who is not here on trial.⁸ You must not speculate on the present status of that person. You must not draw any inference from his/her absence. And you must not allow his/her absence to influence your verdict. You are here to determine whether the People have proven beyond a reasonable doubt that the defendant on trial is guilty of a charged crime.⁹

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Note: When this charge is given, it is also necessary to modify the elements of the charged crime(s) to reflect the theory of accessorial liability. The element(s) specifying the prohibited act(s), i.e. the actus reus of the crime, must include language to indicate that the defendant is liable if the prohibited act(s) was performed by the defendant personally or by another person(s) with whom the defendant was acting in concert. The element(s) specifying the culpable mental state requires no modification. An example of an appropriate modification of a charge for murder in the second degree is as follows:

1. That on or about (date) , in the county of (county) , the defendant, (defendant's name) , personally,¹⁰ or by acting in concert with another person, caused the death of (specify) ;¹¹ and

2. That the defendant did so with the intent to cause the death of (specify) .

Note: The definition of some crimes require that the actor be a “public servant” — e.g. Official Misconduct; Bribery of a Public Servant. A person who is not a “public servant” may be guilty of the crime as an accomplice. An instruction for a purported accomplice should require that the elements of the crime as pertain to the “public servant” be read to the jury, followed by the elements that relate to the accomplice; namely:

# That the defendant, (defendant’s name),

Select as appropriate:

solicited, requested, commanded, importuned, or intentionally aided that public servant [or public servants] to engage in that conduct, and

# That the defendant, (defendant’s name), did so (specify the state of mind required for the commission of the offense, e.g. intentionally, knowingly, or the specific mens rea required by the definition of the crime)].