¶1In the main, the majority predicates a reversal of the conviction on the failure of the trial court to submit for the jury’s determination the accomplice status of the witness Woodall and to instruct on the necessity for corroboration of accomplice testimony in the event they found that she was.
¶2Despite the absence of any request by the defendant for such instructions and the failure to except to the omission so to charge, it is nevertheless being held that the lack thereof deprived the defendant of a substantial right which necessitates a new trial.
¶3We agree that the witness Woodall was not an accomplice as a matter of law. Certainly she was not so connected with the crime charged in the first count of the indictment — possession with intent to sell—that she might herself have been *187convicted at common law as a principal or as an accessory before the fact (People v. Sweeney, 213 N. Y. 37).
¶4Whether her status as an accomplice should have been tendered to the jury as a question of fact is a much closer question. Better practice may have dictated the submission of the issue to the jury. But before determining whether there was reversible error, we must examine the proposition, not in vacuo, but in the setting of the particular trial. It must be stressed that the defendant insisted he had nothing to do with the possession of the narcotics which were found on Woodall. His testimony and the argument of his counsel to the jury suggested that the defendant was a victim of a “ frame-up ’’. Had Woodall’s accomplice status been left as a question of fact for the jury, the court would have been obliged to instruct the jury that if they concluded that the defendant possessed the drugs with intent to sell, they would then have to determine whether Woodall was an accomplice; and if they determined that she was, they would then examine all the other evidence, apart from her testimony, to determine whether there was sufficient inculpatory proof tending to connect the defendant with the commission of the crime. The court then would have been obliged to point out the testimony that might be considered by the jury as corroborative, such as the observations of the police officers, the admissions of the defendant, and the circumstances of the arrest.
¶5The mere statement of these requirements indicates how devastating their enunciation to the jury would have been to the defense proffered by the defendant. Considering the vehement denials of the defendant of any connection with Woodall, except in her role of prostitute, the last thing defense counsel would have wanted in this trial was a charge which referred to Woodall as an accomplice, even hypothetically and with proper caveats to the jury. In effect, it would have been tantamount to a direction to the jury to return a guilty verdict.
¶6"While the record does not disclose any express waiver of the charge, it is not difficult to surmise what the answer of competent defense counsel would have been had inquiry been made whether such instructions were desired. But waiver may be inferred from conduct as well as from words. We view the failure to request the instructions, and the absence of an exception, as a deliberate trial tactic embarked on by proficient counsel to avoid the undermining of the only defense he had in a desperate case. In reversing the judgment of conviction, the majority permits the defendant knowingly to reap the *188benefits of the lack of a charge on accomplice testimony at the trial, and then, when convicted, to transform that advantage into a successful claim by a new attorney of the denial of a fair trial. Where an experienced judge in a criminal trial of a defendant, represented by able counsel, does not charge on accomplice testimony in a case where it is apparent that the matter is pertinent to the issues, we should hesitate to brand the omission as an error in the absence of an exception or request to so charge, especially where the record discloses an obvious reason for a defendant’s desire to avoid such instructions.
¶7Our only concern on this appeal should be therefore whether there was sufficient testimony in the record to constitute corroboration of Woodall’s testimony—and there was such an abundance of it—that we can conscientiously say that the verdict would have been the same with or without the charge and that the defendant was not deprived of any substantial right. For the reasons indicated, we would affirm.
¶8Botein, P. J., and Breitel, J., concur with Bergan, J.; Valente, J., dissents and votes to affirm in opinion, in which Rabin, J., concurs.
¶9Judgment reversed upon the law and in the exercise of discretion and a new trial ordered.