Opinion
February 24, 1992
Appeal from the County Court, Nassau County (O'Shaughnessy, J.).
Ordered that the judgment is affirmed.
The defendant's argument that his trial should have been severed from the trial of his codefendant because the quality and quantity of evidence against him was substantially different from that offered against the codefendant is unpreserved for appellate review (see, CPL 470.05; People v. James, 116 A.D.2d 663; People v. Amato, 99 A.D.2d 495). In any event, the trial court did not improvidently exercise its discretion in denying the defendant's motion for a severance, which was made upon the ground that his codefendant had made a statement inculpating the defendant, because the codefendant testified at trial (see, Bruton v. United States, 391 U.S. 123; People v. Griffin, 48 N.Y.2d 998; People v. Anthony, 24 N.Y.2d 696; People v. Bornholdt, 33 N.Y.2d 75, cert denied sub nom. Victory v. New York, 416 U.S. 905).
We reject the defendant's contention that his right to counsel was violated under the rule established by Massiah v. United States ( 377 U.S. 201). The trial court properly determined, after a hearing, that a fellow inmate of the defendant who testified to a confession made by the defendant while in jail was not acting as a police or government agent. The informer in this instance had provided the information on his own initiative, and not in response to any agreement, understanding, or prompting by the government (see, People v. Cardona, 41 N.Y.2d 333, 335). Additionally, the mere fact that the informer in this case had previously acted as a police informant does not establish that he was presently acting as an agent of the police (see, People v Farley, 120 A.D.2d 761; People v. Blake, 127 A.D.2d 602).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review (see, CPL 470.05), or without merit. Thompson, J.P., Sullivan, Harwood and Balletta, JJ., concur.