People v. Varona

167 A.D.2d 322, 562 N.Y.S.2d 71, 1990 N.Y. App. Div. LEXIS 14108

Opinion

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered February 1, 1989, convicting defendant, after trial by jury, of robbery in the first degree (Penal Law § 160.15) and sentencing him to an indeterminate term of imprisonment of 3 to 9 years, is unanimously reversed, on the law and the facts and as a matter of discretion in the interest of justice, and the case remanded for a new trial.

Defendant’s conviction is reversed for the reasons set forth in the memorandum decision in the appeal of the codefendant Jerome Dudley (167 AD2d 317 [decided herewith]) with respect to the trial court’s refusal to permit defendants to offer expert testimony regarding the complaining witness’s mental capacity.

We find no merit in the remaining issues raised by this defendant, including the denial of his motion for a severance. Defendant failed to make the requisite showing with respect to potential exculpatory testimony by any of the codefendants and his speculative and conclusory assertions in that regard did not require the trial court to grant the severance sought. (People v Bornholdt, 33 NY2d 75, 86-87, cert denied sub nom. Victory v New York, 416 US 905.) Concur—Kupferman, J. P., Ross, Carro, Asch and Ellerin, JJ.