Opinion
December 27, 1993
Appeal from the Supreme Court, Queens County (Farlo, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's motion to be tried separately from his codefendant, made after several of the People's witnesses had testified, was untimely, inasmuch as, prior to trial, the defendant had knowledge of the People's intent to introduce the information which formed the basis of the severance motion (see, People v Bornholdt, 33 N.Y.2d 75, 87-88, cert denied sub nom. Victory v New York, 416 U.S. 905; People v Knowlin, 162 A.D.2d 333, 335). In any event, the court properly exercised its discretion in denying the motion relating to this lengthy trial, since "the defendants [were] charged with acting in concert" (People v Mahboubian, 74 N.Y.2d 174, 183), "proof against the defendants [was] supplied by the same evidence" (People v Bornholdt, supra, at 87), and the risk of prejudice to the defendant by reason of being tried with his codefendant was minimal.
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Copertino, J.P., Pizzuto, Santucci and Joy, JJ., concur.