This is an appeal from a judgment of conviction after trial rendered by the County Court, Bronx County, sentencing defendant-appellant to 3 1/2 to 7 years in State Prison after he had been found guilty of criminally receiving and criminally concealing stolen property, as felonies. A Bronx Criminal Lawyer said that, this defendants, not apprehended, were indicted, charged with the crimes of grand larceny in the first degree; criminally receiving stolen goods as a felony; criminally withholding stolen goods as a felony, and conspiracy.
A Bronx Grand Larceny Lawyer said that defendant was found guilty of the crime of grand larceny in the first degree, defendant-appellant was convicted of the crimes of criminally receiving and criminally withholding stolen goods as felonies, with the disposition heretofore indicated. The conspiracy count was withdrawn after summation by defense counsel and before the case was submitted to the jury.
On June 3, 1958, at premises 1345 Seneca Avenue, The Bronx, there was a fake or sham robbery of the cash payroll of a certain company, in which the defendant, an employee and bookkeeper of the company, participated. It was charged that these defendants and one other, not apprehended, conceived the scheme, executed it and made off with a sum in excess of $9,000. Defendant was to receive a cut of $1,500 and it was while defendant-appellant was allegedly delivering this money for defendant to a prearranged place or person, that defendant-appellant was apprehended.
A Bronx Robbery Lawyer said that, defendant had been taken into custody previously and, after questioning, revealed the entire plot, and implicated defendant-appellant Schwarz and the other defendant. After the openings, but before the presentation of evidence, counsel for defendant-appellant moved for a severance and pointed out that counsel for defendant had not inquired of the jury, had waived his opening and that there was some indication that there was to be no trial so far as defendant was concerned. His motion was denied with an exception.
The issue in this case is whether the conviction of the court is proper.
The court said that, in the early stages of the trial, defendant’s counsel took no part and there was but limited participation by him thereafter. In summation, he endorsed the testimony produced, stating ‘The testimony produced by the District Attorney was a hundred per cent correct.’ defendant did not take the stand. Included in the testimony produced was the confession of defendant made in the absence of defendant-appellant, which the court charged was binding only on defendant, and other statements allegedly made by defendant to an officer that defendant-appellant ‘told me once before that he was a heist man’, that defendant-appellant opened up a glove compartment in a car in which they were then riding, and showed defendant a gun. The officer testified that defendant told him that he was afraid they would harm his wife and children and that was why in the beginning he would not tell what had occurred. The reference to the gun and to the feeling of defendant was elicited on examination of a police officer by counsel for defendant in his somewhat brief participation in the trial. Motions for a mistrial by counsel for defendant-appellant were denied.
In summation, the prosecution did not deny that defendant wanted to plead guilty at the outset of the trial, as stated by counsel for defendant-appellant, but asserted that the only way he could have pleaded guilty ‘is by pleading guilty to all three counts of this indictment’ and defendant did not receive any money. Parenthetically, it should be noted that defendant was not convicted of criminally receiving or withholding stolen money. Although the conspiracy count was withdrawn after summation by defense counsel, maximum benefit had been and was obtained by the prosecution through its utilization and in the posture of this case it is a circumstance which lends substance to the defendant-appellant’s complaint.
The minutes of sentence of defendant indicate full cooperation by him and ‘the fact that he offered to plead guilty at the beginning of the trial and all through the trial.’ On this appeal, the defendant-appellant asserts, inter alia, that his guilt was not proved beyond a reasonable doubt. There would be no merit to that argument if it were the sole basis of the appeal and certain factors to which we will advert were not present. More serious is his contention that he was deprived of a fair trial by the court’s denial of his application for a severance under the circumstances and facts of this case, and because of the tactics of the prosecution.
A motion for a severance or a separate trial, is addressed principally to the discretion of the court and its determination will not lightly be overruled. Nor will an appellate court substitute its discretion for that of the trial judge unless it feels there has been abuse of that discretion. This was the rule at common law, and the Legislature has so provided by statute. Nor would the mere fact of the admission of a confession, standing alone, constitute such an abuse of discretion as to warrant reversal where the court under proper instructions, strove to limit its effect.
It may be that the trial court felt there was insufficient in the record to warrant granting a severance at the time the initial motion therefor was made. Counsel for defendant-appellant pointed out, however, and without contradiction, that the trial of defendant would be a sham and the effect of his admissions would necessarily fall over on defendant-appellant. A preliminary inquiry at that stage of the trial would not have been amiss. The appellate court may be in a more fortunate position in that it can view the record retrospectively to determine if substantial rights of a defendant have been prejudiced by a refusal to grant a severance, or if there is doubt that the conviction might have been effected without the confession and incriminatory statements of a codefendant.
While at common law persons tried upon the same charge were disqualified as witnesses, that disqualification has been removed by statute. A defendant may now be a witness for himself or for a co-defendant or, under certain conditions, he may be called and testify for the prosecution against a defendant jointly named in the indictment. In the ordinary case a ruling directing a joint trial will not be disturbed. But when it is apparent that the practical effect of a confession and additional statements made by a co-operative defendant which are received in evidence on the trial is to jeopardize the rights of a codefendant to a fair trial, or to accuse such codefendant of the commission of other or additional crimes for which he has not been indicted and for which he is not on trial, the conviction thereby obtained cannot stand, and the ruling which, wittingly or unwittingly, permitted the situation will not be sanctioned by affirmance.
The language of our sister Department seems singularly appropriate here: ‘On this record and these briefs the inferences are clear that there was an agreement between the District Attorney’s office and the codefendant and that the purpose in trying the appellant and his codefendant jointly was to prejudice the appellant by the admission of testimony by the detective as to conversations with the codefendant which would not have been admissible if appellant were the sole defendant on trial. In effect, the codefendant, although he did not testify, conceded to the jury that it could and should find him guilty.
In the case before us the same vice in summation is again apparent. We find here that a substantial right of the appellant has been affected and the power conferred by § 542 of the Code of Criminal Procedure is not to be exercised. The judgment appealed from should be reversed on the law and in the interests of justice, and a new trial ordered.
Accordingly, the court held that the judgment unanimously reversed upon the law and in the interests of justice, and a new trial ordered.