Opinion
June 26, 1990
Appeal from the Supreme Court, New York County, Harold Rothwax, J.
We find that the trial court did not err by denying defendant's motion for a severance. The record reveals that defendant and codefendant, Charles Bryant, committed a gunpoint robbery of a couple on the street. On the eve of trial, after a Sandoval hearing was held, defendant moved for a severance on the ground that if he took the stand, his codefendant, who was not bound by the Sandoval ruling, could cross-examine him as to all his prior convictions. This inhibited him from testifying on his own behalf.
The granting of severance motions is within the discretion of the trial court. "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.) When defendants are tried jointly, the Sandoval ruling with respect to one does not limit the scope of cross-examination by the other. (People v. McGee, 68 N.Y.2d 328, 333.) In such a situation severance is granted where the defense of one defendant prejudices the other. Defendant has failed to state sufficient facts to demonstrate how his position was antagonistic to his codefendant. (See, People v. Martin, 154 A.D.2d 554.) Defendant's defense of alibi in no way implicated Bryant. In claiming not to have been present, defendant was denying all knowledge of who committed the crime. If the codefendant impeached defendant's alibi testimony it would only undermine his own defense theory of misidentification. Accordingly, defendant has failed to meet his burden of proving that the trial court abused its discretion.
Concur — Murphy, P.J., Ross, Rosenberger, Asch and Rubin, JJ.