#### The People of the State of New York, Respondent, v Victor Garcia, Appellant.

[768 NYS2d 606]

Judgment, Supreme Court, New York County (John Bradley, J.), rendered September 12, 2000, convicting defendant, after a *322jury trial, of murder in the second degree (three counts), assault in the first degree (two counts) and criminal possession of a weapon in the second and third degrees, and sentencing him to an aggregate term of 55 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence. Issues of credibility, including the weight to be given to the background of the accomplice witness and the benefits he obtained in return for his testimony, were properly considered by the jury and there is no basis for disturbing its determinations *(see People v Gaimari,*176 NY 84, 94 [1903]). The corroboration requirement of GPL 60.22 was fully satisfied by evidence adduced at trial, including defendant’s own statement in which he placed himself in the vehicle from which the fatal shots were fired *(see People v Breland,*83 NY2d 286, 292-294 [1994]). The jury could have reasonably credited the inculpatory aspect of defendant’s statement while discrediting its exculpatory aspect.

The court properly admitted evidence of a remark made after the crime by an unknown member of a small group of persons that included defendant and a nontestifying accomplice to the crime. This comment was not received for its truth, but rather for the fact that the statement was made *(see People v Davis,*58 NY2d 1102 [1983]), a fact that provided relevant evidence tending to corroborate a witness’s testimony. Furthermore, the court provided a thorough limiting instruction. Since defendant’s objection to this evidence was grounded entirely in state evidentiary law, his Confrontation Clause claim is unpreserved *(People v Kello,*96 NY2d 740, 743-744 [2001]; *People v Maher,*89 NY2d 456, 462-463 [1997]), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it *(see Tennessee v Street,*471 US 409 [1985]).

Defendant was not prejudiced by the prosecution’s pursuit of an accessorial liability theory at trial or by the court’s decision to instruct the jury accordingly. Defendant had notice of the prosecution’s intentions and, in any event, there is no distinction between liability as a principal and as an accessory *(see People v Rivera,*84 NY2d 766, 769 [1995]; *People v Guidice,*83 NY2d 630, 637 [1994]; *People v Duncan,*46 NY2d 74, 79-80 [1978], *cert denied*442 US 910 [1979]). We reject defendant’s claim of surprise, particularly since the People had made clear in a bill of particulars and in other documents that they were proceeding on the alternate theories that defendant personally shot the victims, or that he aided others in doing so, and since the evidence supporting the theory of accomplice liability was provided by defendant in his own statement *(cf. People v Spann,*56 NY2d 469 [1982]; *People v Alford,*246 AD2d 337 [1998]).

*323We perceive no basis for reducing the sentence.

Defendant’s untimely request for an adjournment and for permission to file a pro se supplemental brief is denied. Concur—Nardelli, J.P., Saxe, Rosenberger, Williams and Friedman, JJ.