PEOPLE v. ZIMMERMAN (2008)

Appeal by the defendant from a judgment of the County Court, Westchester County (DiBella, J.), rendered June 7, 2005, convicting him of bribery in the third degree, attempted escape in the first degree (three counts), promoting prison contraband in the first degree (five counts), and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's motion to sever his trial from that of his codefendant was untimely, as it was made after the commencement of trial (see People v. Bornholdt, 33 N.Y.2d 75, 87-88, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109;  People v. Delacruz, 289 A.D.2d 254, 255, 733 N.Y.S.2d 699).   In any event, while the granting of a mid-trial motion for severance is within the discretion of the trial court, where proof against multiple defendants “is supplied by the same evidence, only the most cogent reasons warrant a severance” (People v. Bornholdt, 33 N.Y.2d 75, 87, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109;  see People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Islam, 22 A.D.3d 599, 600, 804 N.Y.S.2d 329;  People v. Shodunke, 12 A.D.3d 466, 783 N.Y.S.2d 822).   Under the circumstances presented here, the County Court providently exercised its discretion in denying the defendant's motion for a severance (see People v. Watkins, 10 A.D.3d 665, 666, 781 N.Y.S.2d 701).

The defendant's contentions raised in his supplemental pro se brief that the testimony of Investigator Darin Daughtry constituted improper bolstering and that the court erred in charging accessorial liability are unpreserved for appellate review.   In any event, these contentions, as well as the remaining contentions raised in the defendant's supplemental pro se brief, are without merit.