Opinion
November 28, 1967
Appeal from a judgment of the County Court of Ulster County rendered upon a verdict convicting defendant of the crime of larceny in the second degree. The defendant, Ali Ahmeti, was indicted by the Ulster County Grand Jury on December 22, 1964 for the crimes of burglary in the third degree, grand larceny in the first degree, unlawfully entering a building, and attempted bribery. These crimes allegedly took place on November 2, 1964 at a roadside restaurant on Route 28A in the Town of Ulster, County of Ulster, New York, when the defendant was in the company of Marash Mirakaj and Kabil Bajramovoc who were also indicted for the same crimes, with the exception of attempted bribery. On November 2, 1964 the defendant and Marash Mirakaj signed statements which exculpated them, and incriminated Kabil Bajramovoc. On the same day Kabil Bajramovoc signed a confession which exonerated the defendant and Marash Mirakaj. A joint trial was held on September 17, 1965, and the jury rendered a verdict on September 23, 1965 wherein it determined that the defendant and his codefendants were guilty of the crime of larceny in the second degree, and not guilty of burglary in the third degree or of unlawful entry. The charge of attempted bribery was dismissed on motion after completion of the People's case. Prior to the joint trial, motions were made in Chambers for a severance and separate trial of each defendant on the grounds that a joint trial would be prejudicial and result in an unfair trial. These motions were denied. The statements of all the defendants were admitted into evidence upon the trial. The defendant Bajramovoc was the only defendant to testify on the trial. He repudiated his pretrial confession, and maintained that he had been asleep during the burglary. He also testified that he did not understand the contents of the statement that he signed, and had followed the advice of his codefendants to say "yes" to everything. One of appellant's contentions is that the motion for a separate trial should have been granted by the trial court. The determination of a motion for a separate trial rests in the sound discretion of the trial court, and the appellant here had not demonstrated any abuse of discretion by the trial court, and the denial of the motion should not be disturbed. (Code Crim. Pro., § 391; People v. Diaz, 10 A.D.2d 80, affd. 8 N.Y.2d 1061.) The appellant also claims error in that the trial court failed to charge the provisions of section 399 of the Code of Criminal Procedure to the effect that the testimony of Bajramovoc, testifying in his own defense, was that of an accomplice, and must be supported by such other evidence as tends to connect the defendant with the commission of the crime. There was no request for such a charge, and appellant took no exceptions to the court's charge. Assuming that the trial court should have so charged the jury, the record contains overwhelming evidence to connect the appellant with the commission of the crime, and the alleged error does not warrant a reversal. (Code Crim. Pro., § 420-a; People v. Palmer, 26 A.D.2d 892; People v. Cohen, 5 N.Y.2d 282.) The other alleged errors are neither so substantial nor prejudicial as to require a new trial. (Code Crim. Pro., § 542; People v. Kingston, 8 N.Y.2d 384. ) Judgment affirmed. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.