PEOPLE v. COLE (2024)

Judgment, Supreme Court, New York County (Charles H. Solomon, J., at severance motion;  Michael J. Obus, J., at jury trial and sentencing), rendered May 3, 2018, convicting defendant of attempted robbery in the second degree, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.

The court providently exercised its discretion in denying defendant's motion to sever his trial from that of his codefendant on the ground of antagonistic defenses.  Defendant failed to establish that his defense was in “irreconcilable conflict” with that of his codefendant or that there was a “significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt” (People v. Mahboubian, 74 N.Y.2d 174, 184 [1989]).  A jury could reasonably credit the codefendant's defense that he was not a participant in the crime but was merely intervening to assist the victim, while also accept defendant's contention that his conduct toward the victim did not rise to the level of use or threatened use of force required for attempted robbery.  The record does not support defendant's assertion that codefendant's counsel acted as a “second prosecutor” and elicited damaging evidence that was not already presented at trial (see People v. Cardwell, 78 N.Y.2d 996, 998 [1991]).  In any event, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 242 [1975]).