Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered February 23, 2007.
The opinion of the court was delivered by: Peradotto, J.:
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal
possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Opinion by Peradotto, J.:
Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 ) and criminal possession of a weapon in the second degree (§ 265.03 [former (2)]), following a simultaneous bench trial for one co-defendant (bench trial co-defendant) and a jury trial for defendant and a second co-defendant. Defendant contends that, in allowing the bench trial co-defendant to incriminate defendant before the jury by testifying on his own behalf in front of the jury rather than merely before County Court, as twice requested by defendant, the court violated his rights to due process and a fair trial. We agree with defendant that the judgment should be reversed and that he is entitled to a new trial.
Defendant and three co-defendants were charged by joint indictment with murder in the second degree (Penal Law §§ 20.00, 125.25 ) and criminal possession of a weapon in the second degree (§§ 20.00, 265.03 [former (2)]). Thereafter, one co-defendant pleaded guilty to reckless endangerment in the second degree in exchange for testifying on behalf of the prosecution, and defendant and his two remaining co-defendants proceeded to trial. Approximately one week before the trial, the bench trial co-defendant waived his right to a jury trial and elected to proceed by a bench trial. Defendant requested that the bench trial be severed from the jury trial. Alternatively, defendant requested that the bench trial co-defendant testify outside the presence of the jury in the event that he elected to testify in his own defense. The court denied both the request for severance and the alternative request. After the People, defendant and his jury trial co-defendant rested, counsel for the bench trial co-defendant indicated that his client intended to testify on his own behalf. Defendant's attorney then renewed his request that the bench trial co-defendant's testimony be taken outside the presence of the jury. Counsel for defendant contended, inter alia, that the issue of that co-defendant's guilt or innocence was not before the jury and that the proof had closed with respect to defendant. The court again denied defendant's request and, in his testimony in the presence of the jury, the bench trial co-defendant implicated defendant in the shooting and exculpated himself and the remaining jury trial co-defendant. The jury convicted defendant of both counts charged in the indictment and acquitted the remaining co-defendant. Thereafter, the court acquitted the bench trial co-defendant.
We agree with defendant that he was deprived of a fair trial based on the manner in which the court conducted the simultaneous bench and jury trial, i.e., by denying his requests that the bench trial co-defendant testify on his own behalf outside the presence of the jury, inasmuch as his testimony incriminated defendant (see generally People v Cardwell, 78 NY2d 996; People v Mahboubian, 74 NY2d 174, 186; People v McGriff, 219 AD2d 829). Although it is unusual to conduct a simultaneous bench and jury trial, such a procedure is within a trial court's discretion provided that the procedure does not prejudice any of the defendants (see People v Amato, 173 AD2d 714, 715-716, lv denied 78 NY2d 919, 961, cert denied 502 US 1058; see also People v Fleming, 76 AD3d 582, lv denied 15 NY3d 893; People v Wallace, 153 AD2d 59, 64-67, lv denied 75 NY2d 925; see generally People v Ricardo B., 73 NY2d 228, 233-234). A simultaneous bench and jury trial is, in essence, a "partial form of severance" (Ricardo B., 73 NY2d at 233; see Wallace, 153 AD2d at 65), and the use of that procedure "is to be evaluated under standards for reviewing severance motions generally . . ., which require a showing of prejudice to entitle a defendant to relief" (People v Irizarry, 83 NY2d 557, 560 [internal quotation marks omitted]; see People v Singh, 266 AD2d 569, lv denied 94 NY2d 907). ...