concurring-in-part-and-dissenting-in-part">Rabin, J. (concurring in part and dissenting in part).

I concur with the majority in dismissing the appeal of appellant McDaniel, who is now deceased, in affirming the judgments of appellants Melnick, White, Bergold and Fortuna, and in reversing the judgments of appellants Callis and Greene; but I otherwise dissent and vote to affirm the remaining judgments.

In June, 1970 Police Officer James O’Brien was selected by Deputy Inspector William T. Bonacum, the Executive Officer of the Internal Affairs Division, to work as an undercover agent in the 13th Division, which Bonacum believed was "corruption-prone”. For approximately the first three months *330of his undercover assignment, O’Brien reported to Bonacum on a fairly regular basis. They met on approximately 8 to 10 occasions and O’Brien filed approximately 8 written reports with Bonacum during the months of June and July, 1970. Additionally, O’Brien telephoned Bonacum on several occasions. O’Brien’s last attempt to call Bonacum occurred on the evening of September 22, 1970 and was prompted by an incident which had occurred earlier that evening when O’Brien had been on assignment with appellants Mattina and Zummo. On that evening these two appellants received $990 from Percy Peart, a known gambler. Mattina gave $330 to O’Brien. Shortly after he received the money O’Brien attempted to contact Bonacum by telephone to report the incident. However, he was unsuccessful in his attempt.

On the next day O’Brien, together with Phillips, attended his first "pad” meeting at the Hill Top Social Club in Brooklyn. O’Brien testified that appellants Mattina, Zummo, McDaniel and other members of the 13th Division "pad” were also present.

O’Brien testified that when he accepted the $330 from Mattina on September 22, 1970, and when he attended the "pad” meeting on the next day, he was still acting as an undercover agent on behalf of the police department because he had not then determined that he would not report the two events to Bonacum. He made the decision to become a member of the "pad” in October, 1970.

Also testifying on behalf of the People was Police Officer Stephen Buchalski, who had been a member of the "pad” until January 10, 1972. On that day he was brought to the District Attorney’s office and agreed to co-operate with the investigation in exchange for the District Attorney’s offer of immunity.

Subsequent to January 10, 1972 Buchalski, while working as an agent of the District Attorney’s office, engaged in conversations with members of the "pad”, which conversations were tape-recorded. At the trial, tape recordings with 10 of the appellants herein were admitted in evidence.

Each of the appellants predicates his argument that the evidence was legally insufficient upon an alleged lack of the independent proof to corroborate accomplice testimony required by CPL 60.22 (subd 1). It is argued that the testimony of O’Brien had to be corroborated because he was at one time a member of the "pad” and that the tape recordings could not *331be considered corroborative evidence because the voice identifications were made by an accomplice—Buchalski. I disagree.

During the specific periods when both O’Brien and Buchalski were acting not as coconspirators but, rather, as undercover policemen in an attempt by the police department to ferret out internal corruption, they were not accomplices of the appellants as defined by CPL 60.22 (subd 2). Thus, their testimony as to events and observations they made at the time they were acting as undercover police officers did not require corroboration.

An "accomplice”, as defined by CPL 60.22 (subd 2) is "a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” The majority is holding that this definition encompasses an undercover police investigation by a former accomplice. Such a holding is in error, disregards the prior case law leading to the present legislative enactment, and misconstrues its application.

At common law, an accomplice was one who could have been convicted of the actual crime charged against the accused as a principal only, excluding those guilty of aiding and abetting or counseling and procuring. New York, by statute, expanded this definition to cover one who could have been convicted of the actual crime charged against the accused as a principal, aider and abettor, i.e., the accessory before the fact (see Code Crim Pro, § 399, as amd by L 1882, ch 360, § 1; People v Sweeney, 213 NY 37). However, the offense of the principal and the accomplice had to be identical. Thus, in instances where each of several parties to a transaction might be guilty of a crime, if the crimes were separate and distinct, then one was not the accomplice of the other (People v Blank, 283 NY 526; People v Gibson, 301 NY 244). With the enactment of the Criminal Procedure Law, the Legislature broadened the statute (see Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 60.22, pp 194-195).

Under the new statute, "accomplice” includes not only the principal or an accessory before the fact, but also those who participated in the offense charged in a reciprocal, correlative or tangential manner (see People v Beaudet, 32 NY2d 371). However, for the accomplice statute to apply, one must also be found criminally liable for the specific conduct one actually *332participated in during the commission of the offense on trial (People v Basch, 36 NY2d 154). The question of intent must always enter as an element of the crime as well (People v Wheatman, 31 NY2d 12).

Clearly, one who participates in an offense solely for the purpose of obtaining evidence upon which to convict other participants is not criminally liable for that activity and is not an accomplice within the rule requiring corroboration of testimony of an accomplice (People v Noelke, 94 NY 136). These officers, while they were reporting the appellants’ activities to their superiors, or taping appellants’ conversations, certainly could not be prosecuted as accomplices, so why should not their testimony be heard and weighed by the jury as that of nonaccomplice witnesses? We should not now hold, nor has any case or statute been cited which holds, that a witness once a conspirator is forever condemned to testimonial impotence. Nor need we hold that a believable government witness who later goes astray should have his nonconspiratorial testimony automatically discarded.

It follows that in June, 1970, when O’Brien was assigned to the 13th Division to investigate possible police corruption, he was not acting as an accomplice. Rather, he was performing his assigned task of working as an undercover agent to obtain evidence of corruption by other members of the police department. As mentioned above, for the first three months of his assigned duty O’Brien reported to Bonacum on a regular basis, filed written reports with him, telephoned him on several occasions and advised him that he had received $10 or $20 from Patrolman Phillips in July, 1970. O’Brien also testified that he had tried unsuccessfully to reach Bonacum by telephone the night he received $330 as his one-third share of the money received from Peart—Mattina and Zummo having received the other two thirds. Bonacum testified that he had received a message that O’Brien had in fact called him that evening. Not until some time in October, 1970 did O’Brien decide to terminate his assignment as an undercover agent and become a corrupt police officer and a member of the "pad”. In my opinion, the trial court properly instructed the jurors that they were to find O’Brien was an accomplice as a matter of law "at the very latest, some time in mid or late October of 1970”, the month in which, according to his testimony, he committed illegal acts, but that it was up to them to determine whether he was an accomplice prior to that date.

*333On January 10, 1972, when Buchalski was brought to the District Attorney’s office and agreed to co-operate with the investigation in exchange for the District Attorney’s offer of immunity, any possible prosecution for this criminal activity ceased. From that day forward, while acting as an agent of the District Attorney’s office, Buchalski no longer had a motive "to share his guilt with others such as appellants.” He faced no criminal prosecution and all of his actions from that time forward were not those of an accomplice. Consequently, his testimony identifying the voices of the 10 appellants on the tape recordings needed no corroboration.

I therefore can see no reason why the testimony of these officers should not have been heard and weighed by the jury as the testimony of nonaccomplice witnesses to the events which occurred during that period.

An additional reason for affirming the convictions of appellants Reitano, Maroney, Brown, Carter, Conti and Auletta is that at no stage of the trial did these appellants register a protest to the trial court’s instruction to the jury that, as a matter of law, Buchalski was an accomplice as to all transactions and observations to which he testified which occurred prior to January 10, 1972. They made no requests and took no objection to the trial court’s failure to instruct the jury that Buchalski was an accomplice after January 10, 1972. These appellants are therefore precluded from raising the issue on this appeal. Certainly, the interest of justice does not require a different result.

Margett and O’Connor, JJ., concur with Titone, J.; Rabin, J., concurs in part and dissents in part, with an opinion, in which Latham, J. P., concurs.

Appeal by defendant McDaniel from a judgment of the Supreme Court, Kings County, rendered October 3, 1973, dismissed and action remanded to the Criminal Term for the purpose of vacating the judgment.

Four judgments of the same court, all rendered October 3, 1973, one as against each of the defendants Melnick, White, Bergold and Fortuna, affirmed.

Eleven judgments of the same court, all rendered October 3, 1973, one as against each of the defendants Reitano, Maroney, Brown, Conti, Carter, Cona, Auletta, Zummo, Mattina, Callis and Greene, reversed, on the law, and indictments as against said defendants dismissed.

*334This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5) (as to defendants Melnick, White, Bergold and Fortuna) and for the purpose of entéring an order in its discretion pursuant to CPL 160.50 (as to defendants Reitano, Maroney, Brown, Conti, Carter, Auletta, Zummo, Mattina, Callis, Cona and Greene).

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