Opinion
June 15, 1995
Appeal from the Supreme Court, Albany County (Keegan, J.).
The relevant facts are more fully set forth in our prior decision in People v. Mariani ( 203 A.D.2d 717, lv denied 84 N.Y.2d 869). Defendant and his codefendants, James Mariani and Robert Skinner, were indicted and charged with, inter alia, two counts of murder in the second degree, four counts of burglary in the first degree and one count of conspiracy in the fourth degree. Following a joint jury trial, defendant was convicted of two counts of murder in the second degree and two counts of burglary in the first degree, and sentenced to two consecutive terms of imprisonment of 20 years to life to run concurrently with two terms of 12 1/2 to 25 years.
On this appeal, defendant contends that the proof adduced at trial constituted circumstantial evidence and, utilizing the standard applicable in such cases, he claims that the evidence does not "`exclude to a moral certainty every other reasonable hypothesis'" except that of guilt ( People v. Cleague, 22 N.Y.2d 363, 366, quoting People v. Bearden, 290 N.Y. 478, 480). We disagree. Defendant's admissions concerning the burglary of the victims' residence made to Mark Torra constituted direct evidence of defendant's guilt ( see, People v. Bretagna, 298 N.Y. 323, cert denied 336 U.S. 919) and resort to the circumstantial evidence standard was not necessary ( see, People v. Hill, 188 A.D.2d 949, 951). Given that, we are of the view that the evidence adduced at trial was legally sufficient to establish each element of the crime charged and, after considering the probative force of the testimony and the varying inferences that can be drawn therefrom, that the verdict was not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant next contends that Supreme Court should have severed his trial from that of his codefendants. Defendant, however, failed to move for severance prior to trial and has thereby waived any issue as to the propriety of a joint trial ( see, People v. Arroyo, 209 A.D.2d 328, lv denied 85 N.Y.2d 859). Were we to consider this issue, we would nevertheless find no error in conducting a joint trial of these defendants. It is axiomatic that "[s]ome degree of prejudice is * * * inherent in every joint trial" ( see, People v. Mahboubian, 74 N.Y.2d 174, 183-184) and that factor must be balanced against concerns for judicial economy and convenience of witnesses. In short, in order for defendant to be entitled to severance, it must appear that a joint trial will, or did, result in unfair prejudice to defendant and substantially impaired his defense ( see, People v. Cruz, 66 N.Y.2d 61, 73-74, revd on other grounds 481 U.S. 186). A review of the record here reveals no such prejudice.
With regard to defendant's contention that Torra's testimony was not sufficiently corroborated, we have previously determined that issue favorably to the People ( see, People v. Mariani, 203 A.D.2d 717, 718, supra). In addition to the factors mentioned in People v. Mariani ( supra), defendant's admissions to Detective Jay Cunningham of the Albany Police Department further serve to corroborate Torra's testimony.
We have examined defendant's remaining arguments, including those made in his pro se brief, and find them to be without merit.
Mikoll, J.P., White, Yesawich Jr. and Spain, JJ., concur. Ordered that the judgment is affirmed.