Opinion
November 19, 1993
Appeal from the Monroe County Court, Wisner, J.
Present — Callahan, J.P., Pine, Balio, Doerr and Boomer, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that County Court erred in denying his motion for a severance and ordering a joint trial with codefendant. Where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance (People v Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v New York, 416 U.S. 905; People v Padilla, 181 A.D.2d 1051, lv denied 79 N.Y.2d 1052). Although the motion to sever was premised on a claim that the defenses were antagonistic, upon our review of the record, we do not find the "core" of each defense to be in irreconcilable conflict (People v Mahboubian, 74 N.Y.2d 174, 184; see, People v Hill, 190 A.D.2d 990, lv denied 81 N.Y.2d 1014; People v Padilla, supra). Furthermore, as a result of a Sandoval compromise, the codefendant agreed that his defense would not be antagonistic and withdrew his severance motion. The codefendant's statement at trial that "Rondell was in jail at the time", was non-responsive to the question asked and the court promptly instructed the jury to disregard it. Thus, the court mitigated any prejudice that might have resulted from codefendant's reference to defendant's previous incarceration.