PEOPLE v. HILTON (2018)

Defendant was not deprived of a fair trial by the fact that he was tried jointly with a codefendant.  In opposing consolidation and moving for severance, the two defendants repeatedly changed their explanations of what their defenses would be, and never set these defenses forth with sufficient specificity.  In any event, at no point did they offer defenses that would be in such irreconcilable conflict as to create “a significant danger ․ that the conflict alone would lead the jury to infer defendant's guilt” (People v. Mahboubian, 74 N.Y.2d 174, 183–184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ), or cause either defendant to act as a “second prosecutor” against the other (People v. Cardwell, 78 N.Y.2d 996, 998, 575 N.Y.S.2d 267, 580 N.E.2d 753 [1991] ).

Furthermore, defendant has not shown that the joint trial deprived him of his right to testify.  Defendant claims he chose not to testify due to fear that the codefendant would be permitted to conduct an unlimited cross-examination of defendant about his prior convictions.  However, there was no showing that the codefendant would have had any reason to impeach defendant's credibility (see People v. Frazier, 309 A.D.2d 534, 765 N.Y.S.2d 495 [1st Dept. 2003], lv denied 1 N.Y.3d 571, 775 N.Y.S.2d 788, 807 N.E.2d 901 [2003] ).

In any event, the defenses ultimately presented at trial by the two defendants were not in irreconcilable conflict.  The record, including the cross-examinations and summations presented by the respective attorneys, fails to support defendant's assertion that each defendant accused the other of committing the robbery.  To the extent there was any conflict, it is unlikely that the existence of the conflict would have contributed to the verdict, given the strong evidence of guilt provided by the victim and the arresting officers (see Mahboubian, 74 N.Y.2d at 186, 544 N.Y.S.2d 769, 543 N.E.2d 34).

The trial court providently exercised its discretion in precluding defendant from questioning the arresting officer on whether the officer had certain exculpatory “information.”  The question was plainly aimed at eliciting hearsay, consisting of defendant's own statement, and defendant did not establish any valid theory of admissibility (see People v. Hubrecht, 2 A.D.3d 289, 289, 769 N.Y.S.2d 36 [1st Dept. 2003], lv denied 2 N.Y.3d 741, 778 N.Y.S.2d 467, 810 N.E.2d 920 [2004] ).

Defendant did not preserve his claim that this ruling deprived him of his constitutional right to cross-examine witnesses and present a defense (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ), as well as his claim, raised at trial only by the codefendant (see People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 552 N.E.2d 160 [1990] ), that the victim's entire testimony should have been stricken because he invoked the Fifth Amendment when asked about an immigration matter, and his claim that his sentence was unconstitutionally imposed, and we decline to review these claims in the interest of justice.  As an alternative holding, we reject each of them on the merits.

We perceive no basis for reducing the sentence.