Opinion
December 2, 1991
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
The defendant's principal contention is that the trial court erred by denying his untimely motions for a separate trial. However, "[w]here proof against * * * [two] defendants is [to be] supplied by the same evidence, only the most cogent reasons warrant a severance" (People v Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v New York, 416 U.S. 905; see, People v Cardwell, 78 N.Y.2d 996; People v Mahboubian, 74 N.Y.2d 174, 184; People v Stuckey, 147 A.D.2d 724). In the case at bar, the evidence against the defendant and his codefendant was virtually identical. The defendant's right to confrontation was not infringed by the admission of his codefendant's statements since the codefendant testified at the trial (see, People v Stuckey, supra; People v Velasquez, 147 A.D.2d 726). In addition to affording the defendant the opportunity to cross-examine the codefendant, the trial court gave limiting instructions to the jury on the use of the codefendant's statements both after the statements were introduced into evidence and again during its charge to the jury (see, People v Stuckey, supra; People v Velasquez, supra).
The defendant also contends that sufficient independent evidence to corroborate the testimony of another accomplice was lacking (see, CPL 60.22). We disagree. The role of independent proof to meet the requirements for corroboration under CPL 60.22 (1) is to connect the defendant with the commission of the crime, not to prove he committed it (see, People v Glasper, 52 N.Y.2d 970, 971). Moreover, the corroborating evidence need only connect the defendant with the crime in such a way that the jury can be reasonably satisfied that the accomplice is telling the truth (see, People v Harris, 126 A.D.2d 745, 746; People v Daniels, 37 N.Y.2d 624, 630). Here the testimony of Detective Gallo regarding the statements the defendant had made to him, the complainant's positive identification of the codefendant, with whom the defendant had claimed to be all night, and the defendant's flight from the "getaway" car, provided sufficient independent corroboration to satisfy the mandate of CPL 60.22 (see, People v Glasper, supra; People v Harris, supra).
While the defendant's arrest was not based on probable cause, certain statements he made were admissible at the trial since "they were sufficiently attenuated from the illegal arrest to be purged of the taint created by the illegality" (People v Jones, 151 A.D.2d 695; United States v Crews, 445 U.S. 463). The defendant's statements were made several hours after his arrest, after he had been read his Miranda warnings no less than twice, and only after an accomplice who had been arrested at a different time and place had implicated him (see, People v Jones, supra).
The defendant's claim that the court should have redacted portions of his codefendant's statement is unpreserved for appellate review. The defendant did not request this relief at the trial (see, People v Diaz, 161 A.D.2d 789, 790; People v Economy, 156 A.D.2d 459, 460). In any event, the trial court's limiting instruction sufficed to avert any potential prejudice (see, People v Economy, supra).
Finally, the trial counsel's failure to timely move for a separate trial, by itself, does not warrant a finding that he was ineffective (see, People v Rivera, 71 N.Y.2d 705, 709). Thompson, J.P., Harwood, Lawrence and Miller, JJ., concur.