Justice Elizabeth Foley
Bertram Barnette moved to sever his case from that of his brother, codefendant Andrew. Prosecutors cross-moved for consolidation of this indictment with one under which codefendant Cole was charged. All three defendants were charged with the kidnapping and assault, among other charges, they allegedly committed against the same victim on the same date. Bertram sought to sever the indictment as to Andrew under the good cause provision of Criminal Procedure Law §200.40(1), based on his denial of participation in the criminal activity. He claimed he would be prejudiced by a single trial. The court stated severance was not required solely due to hostilities among defendants, differences in their trial strategies or inconsistencies in their defenses. It noted severance was compelled only where the core of each defense was in irreconcilable conflict with the other and there was a danger the conflict would lead the jury to infer a defendant’s guilt. The court ruled Bertram failed to establish substantial prejudice would impact his right to a fair trial, finding no irreconcilable conflict with his codefendant’s defense, and noted Andrew failed to join in the severance motion. Thus, it granted consolidation, denying Bertram’s motion.
