Opinion
December 14, 1992
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention the court properly denied that branch of his omnibus motion which was to controvert the search warrant. The affidavit in support of the warrant application recited that the source of the informant's knowledge was his personal observations and that on two prior occasions the informant had furnished information to the police which led to the arrests and seizure of narcotics and illegal handguns. Such an affidavit satisfies the Aguilar-Spinelli test (see, Aguilar v Texas, 378 U.S. 108; Spinelli v United States, 393 U.S. 410; see also, People v Collier, 89 A.D.2d 1041, 1042; People v Rodriguez, 150 A.D.2d 622; People v Proctor, 155 A.D.2d 624). Moreover, where, because of a factual mistake on the part of the officers who obtain a warrant, the description of the person or things to be seized is overbroad, the validity of the warrant turns on the information available to the officers at the time they obtained it (see, Maryland v Garrison, 480 U.S. 79, 85; see also, People v Otero, 177 A.D.2d 284, 285). On the record before us we conclude that at the time of the issuance of the warrant Officer Griffin was unaware of the circumstances giving rise to the ambiguity or overbreath in the description of the place mentioned therein. Furthermore, we are satisfied that the officer made a diligent attempt to ascertain the number of the target apartment. Thus the warrant was not affected by the subsequent discovery of the fact giving rise to the ambiguity.
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v Contes, 60 N.Y.2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
It is well settled that severance motions are directed to the sound discretion of the trial court (People v Mahboubian, 74 N.Y.2d 174, 183). Severance is not required solely because of hostilities between the defendants, differences in their trial strategies, or inconsistencies in their defenses, and is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt (People v Mahboubian, supra, at 183; People v Cruz, 66 N.Y.2d 61, 73, revd on other grounds 481 U.S. 186). Moreover, "[w]here 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). In the instant case the defenses asserted by each defendant were not mutually exclusive and, moreover, the proof against each was supplied by the same evidence. Accordingly, the court properly denied the defendant's motion for severance.
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Thompson, J.P., Balletta, Eiber and Ritter, JJ., concur.