Opinion
October 10, 1989
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The defendant Maura Dilone and a codefendant Eslay Martinez were jointly tried and convicted of intentionally causing the death of Rafael Dilone, Maura's husband. On this appeal, the defendant maintains that the trial court abused its discretion in denying her pretrial motion for a separate trial. We disagree.
Initially, the defendant's claim is not preserved for review as a matter of law (CPL 470.05). In this regard we note that her motion was based not on the claim of antagonistic defenses now raised, but solely upon an alleged Bruton issue (see, Bruton v United States, 391 U.S. 123; see also, Cruz v New York, 481 U.S. 186). Because the defendant never raised this issue in the Supreme Court, it is not preserved for our review (see, People v Bouyea, 142 A.D.2d 757).
In any event, we find the defendant's contention to be without merit. The decision to grant or deny a separate trial is vested primarily in the sound discretion of the Trial Judge (CPL 200.40), and the defendant's "burden to demonstrate abuse of that discretion is a substantial one" (see, People v Mahboubian, 74 N.Y.2d 174, 183). We find no abuse or improvident exercise of that discretion here.
As for the Bruton issue, we note that there was no violation of the right to confrontation since the codefendant testified at trial and the defendant exercised her right to cross-examine him with respect to his statement (see, People v Palmer, 134 A.D.2d 462).
The defendant was not denied her right to a fair trial by the denial of the motion since there was not a "substantial difference in the quality and quantity of evidence which the People had with respect to the defendant and the codefendant" (People v Larkin, 135 A.D.2d 834, 835; see also, People v Bornholdt, 33 N.Y.2d 75, cert denied sub nom. Victory v New York, 416 U.S. 905). Moreover, the evidence adduced at trial did not indicate that the defendant's position was completely antagonistic to that of the codefendant, such that joinder of their trials, which arose out of the same circumstances and crimes, resulted in undue prejudice to the defendant, or substantially impaired her defense (see, People v Anfossi, 125 A.D.2d 317; People v Griffin, 135 A.D.2d 730). Lawrence, J.P., Rubin, Balletta and Rosenblatt, JJ., concur.