Opinion
October 17, 1988
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
The defendant, Waldemard Flores, was convicted of shooting the victim, Orlando Lozano, during a robbery in a building located on 675 Union Street, in Brooklyn. He was tried jointly with Ralph Ortiz (see, People v Ortiz, 143 A.D.2d 851 [decided herewith]), who was alleged to have assisted in the robbery but did not fire the shot that killed Orlando. The defendant's principal claim is that the testimony of an accomplice, one Juan Rivera, was not corroborated by independent evidence tending to connect him to the crimes charged (see, CPL 60.22). It is a long-standing rule that the corroborating evidence need only "tend to connect" the defendant to the crime charged (see, People v Donovan, 59 N.Y.2d 834). The independent evidence need not prove that the defendant committed the crime nor need it establish the elements of the crime (see, People v Donovan, supra; People v Cunningham, 48 N.Y.2d 938). We conclude on this record that the testimony of an eyewitness to a robbery resulting in the murder of the victim placing the defendant at the scene of the crime, as well as the testimony of a witness who saw the defendant flee from the scene of the crime, is sufficient to connect the defendant to the crime.
We also reject the defendant's claim that a severance should have been granted. The decision of whether to grant a severance to defendants properly tried jointly is discretionary (see, People v Payne, 35 N.Y.2d 22, 26). Where proof against each defendant is supplied by the same evidence, only the most cogent reasons warrant severance (see, People v Anfossi, 125 A.D.2d 317). Further, where defendants are tried jointly, one defendant has the right to adduce evidence to exculpate himself (see, People v Carter, 86 A.D.2d 451; see also, People v Ofunniyin, 114 A.D.2d 1045). To substantially deny a defendant this right is reversible error (see, People v Carter, supra; see also, People v Baum, 64 A.D.2d 655). The record before us shows that the the codefendant's counsel sought to cross-examine the People's witnesses regarding their accounts of the robbery and subsequent murder, seeking merely to show that the defendant held the gun while the codefendant Ortiz did not. We conclude that based on this record a severance was not required.
The defendant's remaining contentions, including the claims raised in his behalf by appellate counsel, have been considered and have been found to be either unpreserved for appellate review (see, CPL 470.05; People v Holzer, 52 N.Y.2d 947) or without merit. Thompson, J.P., Brown, Rubin and Eiber, JJ., concur.