People v. Pepin

Judgment of conviction reversed on the law and facts and in the exercise of discretion and a new trial granted. Memorandum: In a single indictment, the defendant-appellant Pepin and the defendant Cook were charged, in three counts, with having jointly committed a robbery on July 18, 1956 and, in a separate count of the indictment, the defendant Cook was charged with having committed a robbery alone on August 8, 1956. Concededly, the two crimes were wholly unrelated; it is not claimed that they were connected together or that they were parts of a common scheme or plan. The joinder is sought to be justified under section 279 of the Code of Criminal Procedure, as enacted by chapter 328 of the Laws of 1936, upon the ground that the crimes were of “ the same or a similar character,” to wit, that they were both robberies. Both defendants were convicted as charged. The defendant-appellant Pepin, in advance of the trial, moved for a severance, and he renewed the motion at the opening of the trial and at its close. The motions were denied. In our opinion, this constituted an abuse of discretion. Under *993the circumstances of this case, the motion for a severance should have been granted, in the exercise of discretion, upon the ground that the joinder was prejudicial to the interests of the defendant-appellant. All concur. (Appeal from a judgment of Erie County Court convicting defendant Pepin of robbery, first degree.) Present — McCurn, P. J., Kimball, Williams, Bastow and Halpern, JJ.