Opinion
December 1, 1986
Appeal from the County Court, Nassau County (Baker, J.).
Ordered that the judgment and order are affirmed.
The defendant contends that the antagonistic defenses presented by himself and his codefendant required the granting of his motion for a severance. The record, however, indicates that the defendant's motion for a severance was based upon an articulated concern which the trial court resolved to his satisfaction. Where, as here, proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant the granting of a motion for a severance (see, People v. Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v. New York, 416 U.S. 905), and, under the circumstances, the trial court did not abuse its discretion in denying the motion (see, People v. Bornholdt, supra).
Our review of the record further reveals that no "`injustice or impairment of substantial rights unseen at the beginning'" of the trial has occurred (People v. La Belle, 18 N.Y.2d 405, 409, quoting from People v. Fisher, 249 N.Y. 419, 427), and that the joint trial neither resulted in undue prejudice to the defendant nor substantially impaired his defense (see, People v. Cruz, 66 N.Y.2d 61, 73-74, cert granted ___ US ___, 106 S Ct 2888).
As to the denial of the defendant's CPL 440.10 motion to vacate the judgment on the ground of newly discovered evidence, the record indicates that the evidence in question did not meet the criteria set forth in People v. Salemi ( 309 N.Y. 208, 216, citing People v. Priori, 164 N.Y. 459, 472) (see, People v. Balan, 107 A.D.2d 811, 814-815). Therefore, the trial court properly denied the motion.
We have considered the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Bracken, Rubin and Spatt, JJ., concur.