Opinion
December 29, 1993
Appeal from the Erie County Court, D'Amico, J.
Present — Green, J.P., Balio, Lawton, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We conclude that, based on the evidence, the law and the circumstances of this case viewed in totality, defendant was provided meaningful representation (see, People v Baldi, 54 N.Y.2d 136, 146-147; People v Trait, 139 A.D.2d 937, lv denied 72 N.Y.2d 867). We further conclude that County Court did not abuse its discretion in denying defendant's motion for a separate trial (see, People v Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v New York, 416 U.S. 905; People v Shepherd, 176 A.D.2d 766, lv denied 79 N.Y.2d 832). Defendant failed to establish that his defense and codefendant's defense were so antagonistic and in irreconcilable conflict as to require separate trials (see, People v Shepherd, supra; see generally, People v Mahboubian, 74 N.Y.2d 174, 183). Because no objection was made to the People's improper denigration of the defense and use of the term "red herring" (see, People v Clemons, 166 A.D.2d 363, 366), those errors have not been preserved for our review (CPL 470.05); we decline to reach them as a matter of discretion in the interest of justice because they did not deprive defendant of a fair trial (see, CPL 470.15).
We have reviewed defendant's remaining contentions, including those raised pro se, and find them to be without merit.