Opinion
February 9, 1987
Appeal from the Supreme Court, Westchester County (Marasco, J.).
Ordered that the judgment is affirmed.
The defendant has failed to preserve his claim that the court erred in refusing to suppress certain physical evidence, since no timely pretrial motion for this relief was made (CPL 255.20; 710.40 [1]; see People v. Martin, 50 N.Y.2d 1029).
Further, we reject the defendant's contention that he was denied a fair trial by the court's failure to sever his trial from that of his codefendant. Both he and his codefendant gave confessions to the police which recited their planning of the burglary and their drive from Yonkers to Somers for the purpose of committing the crime. These admissions were so similar and interlocking that it is unlikely that any prejudice to the defendant resulted from the admission of his codefendant's statement (see, People v. Cruz, 66 N.Y.2d 61, cert granted ___ US ___, 106 S Ct 2888; People v. Berzups, 49 N.Y.2d 417; People v Eastman, 114 A.D.2d 509). The only difference between the two statements was the codefendant's admission that he had actually committed the crimes. The defendant was sitting alone in his car parked near the burglary site when both he and his codefendant were arrested, and proof that the burglary was committed by the codefendant was necessary in establishing the defendant's guilt of acting in concert with him in the commission of the crimes. However, as there was overwhelming proof of the defendant's guilt, independent of the codefendant's statement, there is little likelihood that the jury, despite the court's instruction to the contrary, seized upon this statement as a "guide for resolving ambiguities in the People's case against the [defendant]" (see, People v. Payne, 35 N.Y.2d 22, 28).
While we note with disapproval the trial court's comment in charging a lesser included offense that said charge was being given at the defendant's request (see, People v. DeFiore, 51 A.D.2d 806), the evidence of the defendant's guilt in this case is so overwhelming that the error may be deemed harmless (see, People v. Crimmins, 36 N.Y.2d 230; cf., People v. Strawder, 54 A.D.2d 743).
We have examined the defendant's remaining contentions and find them to be without merit. Mollen, P.J., Thompson, Brown and Niehoff, JJ., concur.