The People of the State of New York, Respondent, v. Fabian Heyward, Appellant

The People of the State of New York, Respondent, v Fabian Heyward, Appellant. [MAJORITY] — Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered March 29, 1989, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of depraved indifference murder beyond a reasonable doubt (see, People v Register, 60 NY2d 270, cert denied 466 US 953; People v Santana, 163 AD2d 495; People v Ventiquattro, 138 AD2d 925; see also, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 491). The court’s charge on accessory liability was proper inasmuch as the indictment charged an acting in concert theory and there was evidence, if believed by the jury, to support a finding that the defendant either shot the victim, or both aided and shared the mental state of the individual who shot the victim (see, People v Whatley, 69 NY2d 784). Finally, the court providently exercised its discretion in declining to permit a codefendant to take the stand solely to place before the jury that the codefendant was exercising his right against self-incrimination (see, People v Sapia, 41 NY2d 160, 163-164, cert denied 434 US 823; People v Thomas, 51 NY2d 466; People v Dixon, 149 AD2d 613). Thompson, J. P., Sullivan, Rosenblatt and O’Brien, JJ., concur.