People v. Kazepis 94 A.D.2d 707

— Appeal by defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered September 1, 1982, convicting him of criminal sale of marihuana in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial granted. The main prosecution witness in this case was Charles Miller, who allegedly purchased a quantity of marihuana from defendant. Miller was an accomplice, as a matter of law, since he “may reasonably be considered to have participated in * * * [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22, subd 2, par [b]; see, also, People v Berger, 52 NY2d 214). Indeed, Miller pleaded guilty to criminal sale of marihuana as a class A misdemeanor in connection with his participation as a middleman in the the incident. Therefore, the trial court erroneously denied defendant’s request to instruct the jury that corroboration of Miller’s testimony was necessary. That error cannot be deemed harmless, especially since the proof of defendant’s guilt without Miller’s testimony was not overwhelming (People v Minarich, 46 NY2d 970; People v Ramos, 68 AD2d 748). Thompson, J. P., O’Connor, Brown and Rubin, JJ., concur.