People v. Newton

232 A.D.2d 429, 648 N.Y.S.2d 614, 1996 N.Y. App. Div. LEXIS 9859

Opinion

—Appeal by the defendant from a judgment of the County Court, Nassau County (Kowtna, J.), rendered December 12, 1994, convicting him of burglary in the third degree, possession of burglar’s tools, and criminal mischief in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly declined to grant a severance in the absence of proof that the defenses offered by the defendant and his codefendant were in conflict. It is well established that that "severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” (People v Mahboubian, 74 NY2d 174, 184). The fact that the evidence against the codefendant is relatively stronger than the case against the moving defendant, does not warrant the conclusion that their interests are in irreconcilable conflict. Accordingly, the court properly exercised its discretion in determining not to grant the severance (see, People v Mahboubian, supra, at 183).

The defendant’s remaining contentions are either not preserved for appellate review or without merit. Bracken, J. P., Santucci, McGinity and Luciano, JJ., concur.