The opinion of the court was delivered by: Jones, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The issue presented is whether Supreme Court's error in denying defendant's requests for a severance based on the improper joinder of certain counts relating only to co-defendant (see CPL 200.40 ) is harmless. We hold that Supreme Court's conceded error is not.
On November 6, 2005, in broad daylight, two assailants robbed the complainant at gunpoint as he was loading packages into his car on a street in Queens. Jewelry, cash, a cell phone, two fur coats and an expensive bag were forcibly stolen from the complainant. By Queens County Indictment Number 658/2006, defendant and his co-defendant were charged, on an acting-in-concert theory, with first- and second-degree robbery based solely on the complainant's identification. The same indictment also separately charged only the co-defendant with four drug offenses and resisting arrest stemming from his arrest at his mother's home on January 16, 2006. Although the drug counts and the resisting arrest count had no connection to defendant or the November 6, 2005 incident, defendant, who was arrested in December 2005, and his co-defendant were tried together, before a jury, on the single indictment.
Defendant's counsel, at numerous points during the proceedings, sought to sever the joint trial or otherwise advise the court of the impropriety of a joint trial in this case. For example, he:
(1) noted, in defendant's pre-trial omnibus motion, that defendant's co-defendant had been "indicted for a number of drug related offense[s] which by necessity will create substantial prejudice which will spill over and infect [defendant];"
(2) stated, in support of defendant's motion to sever, that "joint trials can be prejudicial when one defendant is not being accused of the same crimes as his co-defendant" and that defendant "should not be placed in a position where spillover testimony can adversely affect jury deliberations" (citing Zafiro v United States, 506 US 534, 539 );
(3) argued, during voir dire (about one week before trial), that defendant and his co-defendant should not be tried jointly;
(4) stated, on the record just prior to jury selection, that defendant's co-defendant "is charged with drugs in this case. My client is not. I think I have a Hercul[e]an task [in] preventing the jury from mixing that mash together;"
(5) explained, following the trial court's opening remarks to the jury pool, "Your Honor, during the course of the trial I am anticipating that the People by virtue of the posture of this indictment are about to be offering proof of [defendant's co-defendant] being involved in narcotics. . . . It's my intention that each and every time . . . the prosecutor attempts to do that, I am going to be objecting to it, Judge." At this time, counsel further argued that a severance was "in order" because the drug evidence against defendant's co-defendant "will enure to the total detriment of [defendant] who is not charged in any way with any narcotics;"
(6) noted, in response to the trial court's statement that it had instructed the jury pool to consider the charges separately, that such an instruction was "insufficient to cure the prejudicial effect" of a joint trial, and that the People were "making a grave mistake" by pursuing such a trial;
(7) objected to that portion of the prosecutor's opening statement which referred to the warrant officers and the drug allegations because they did not pertain to defendant. At this point in the proceedings, the trial court indicated that it understood counsel's objection and that counsel did not have to keep objecting;
(8) renewed his motion for severance based on the prosecutor's opening statement, arguing that the prosecutor exposed the jury to "excessive prejudicial information," and that defendant, who was not charged with any drug offenses, could "no longer get a fair hearing;" and
(9) objected to the drug-related testimony of police officers and other witnesses, and renewed his severance motion when one of the officers testified.
Although defendant's counsel made numerous requests for a severance, the People never took a position on any of defendant's applications; further, Supreme Court denied all of ...