People v. Mayo

201 A.D.2d 412, 607 N.Y.S.2d 654, 1994 N.Y. App. Div. LEXIS 1502

Opinion

Judgment, Supreme Court, New York County (James Leif, J.), rendered October 2, 1991, convicting defendant, after jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3Vi to 7 years, unanimously affirmed.

The trial court appropriately exercised its discretion in denying defendant’s motion for severance on the ground that the codefendant’s exculpatory testimony was necessary to his defense, as counsel for the codefendant specifically represented on the record that the codefendant would invoke his Fifth Amendment right should he be called upon to testify and, indeed, had no intention of exonerating defendant (People v Bornholdt, 33 NY2d 75, 87, cert denied sub nom. Victory v New York, 416 US 905). Concur — Carro, J. P., Ellerin, Wallach, Kupferman and Nardelli, JJ.