Opinion
Argued October 15, 1976
Decided October 28, 1976
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DONALD H. MONROE, J.
Arlington R. Gleckner for appellant.
D. Bruce Crew, III, District Attorney (Richard L. Parker of counsel), for respondent.
Order affirmed. In view of uncontradicted assertions in the briefs concerning the granting of a severance only on condition of defendant waiving a jury trial, but absent support in the record, defendant's remedy is by motion to vacate the judgment under CPL 440.10 (subd 1, par [f]). In so holding the court, of course, expresses no view as to how such motion should be decided.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.