Opinion
October 25, 1993
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The defendant and the codefendant were jointly tried on a theory of acting in concert in connection with the robbery and stabbing of the complainant. The jury found the defendant guilty of certain counts and acquitted the codefendant of all counts. On appeal the defendant argues, inter alia, that the trial court improvidently exercised its discretion in denying his request for separate trials since the defenses presented by the defendant and the codefendant were irreconcilable. We disagree.
The decision to direct separate trials rests in the sound discretion of the trial court and the defendant bears the heavy burden of showing that the discretion was exercised improvidently (see, People v. Mahboubian, 74 N.Y.2d 174). Where, as here, the proof against two or more defendants is supplied by the same evidence, only the most cogent reasons warrant separate trials (see, People v. Manos, 181 A.D.2d 796). As to the defendant's claim that his defenses and those of the codefendant were irreconcilable, we note that where, as here, the defendant claims that he was not at the scene of the crime and the codefendant contends that he was merely a bystander, the defenses are not irreconcilable (see, People v. Allaway, 172 A.D.2d 617). "It must appear that a joint trial necessarily will, or did, result in unfair prejudice to the moving party and substantially impair his defense" (People v. Cruz, 66 N.Y.2d 61, 73-74, revd on other grounds 481 U.S. 186). Since separate trials are not required solely due to hostility between defendants, or differences in their trial strategies or defenses (see, People v. Cruz, supra; People v. Allaway, supra), the defendant has failed to advance any sufficient reason to warrant a separate trial here.
The defendant's contention that the codefendant's extra-judicial statement inculpating him, deprived the defendant of a fair trial is also without merit. Here, the trial court adequately instructed the jury to consider the extra-judicial statement of the codefendant only to assess his own credibility. The defendant's right to confrontation was not infringed by the admission of his codefendant's statement since the codefendant testified at trial and the defendant had ample opportunity to cross-examine him (see, People v. Jackson, 178 A.D.2d 438).
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Sullivan, Eiber and Pizzuto, JJ., concur.