"Section 29(a) of the Penal Law, which defines what joint execution is, states:
"Those who participate in the commission of an offense while committing acts to commit it, commit it together, and it does not matter whether all the acts were committed together, or if some of them were committed by one and some by another."
Section 31 of the Penal Law defines an assistant as follows:
"Anyone who, before or at the time of the commission of the offense, committed an act in order to enable the commission, to facilitate or secure it, or to prevent the apprehension of the perpetrator, the discovery or denial of the offense, or in order to contribute in any other way to the creation of conditions for the commission of the offense, is assisting."
This distinction between "the joint performer" and the "facilitator" has been referred to in the literature as the "participation test." According to this test, the perpetrator jointly performed acts to commit the actual offense, while the aider performed acts intended only to enable its execution, to facilitate it, or to secure it. Since the "participation test" is difficult to apply in and of itself, the case law outlined a number of auxiliary tests for the distinction between a joint perpetrator and an aider (see, for example: Yoram Rabin and Yaniv Vaki Penal Law, Vol. 1, 640-641 (3rd ed., 2014) (hereinafter: Rabin and Vaki)).
Thus, for example, the case law made use of the auxiliary test of functional-substantive control over the event, in order to distinguish between the joint perpetrator and the accomplice (Criminal Appeal 8573/96 Mercado v. State of Israel, para. 87 of the judgment of Justice A. Goldberg (December 18, 1997) (hereinafter: the Mercado case)). The auxiliary test of functional control must be combined and applied alongside other tests, in order to understand the components of the distinction between the joint perpetrator and the aider (see, for example: Criminal Appeal 2111/99 Jairo v. State of Israel, para. 10 of the judgment of Justice (as he was then called) S. Jubran (November 26, 2003) (hereinafter: the Jairo case)).