People v. Everson, 2025 N.Y. Slip Op. 05738 (Oct. 16, 2025)

Issue Before the Court: Whether the trial court abused its discretion in denying defendant’s request to sever his trial from his codefendant’s where codefendant’s closing argument pinned the offense on defendant.

Factual Background: Everson and codefendant Bordies were alleged to have driven with a third individual (“JE”) to a neighborhood park, where two shooters opened fire on a crowd of people, killing one.

Prior to the joint trial, Everson moved for severance, asserting that Bordies’s counsel intended to argue Everson was responsible for the shooting. The trial court denied the motion, finding the arguments speculative and stating it would address the issue if it came to fruition at trial.

At trial, JE implicated the defendants as the two shooters. Other evidence showed the three men’s movements around the time of the shooting and suggested that the shots had been fired from two guns. Everson’s ex-girlfriend also testified that he showed her two guns after the shooting and told her he had just killed somebody but claimed to be joking. Neither defendant called any witnesses, nor did either defendant elicit incriminating evidence against the other on cross-examination.

On summation, Bordies’s counsel argued that the evidence supported the conclusion that Everson was one of the shooters, pointing to the ex-girlfriend’s testimony. The summation also challenged JE’s credibility, as the sole witness to place a gun in Bordies’s hands, and opined that the evidence supported that JE, and not Bordies, was the second shooter.

Following codefendant’s summation, Everson renewed the severance motion.

Counsel argued that Bordies’s attorney functioned as a second prosecutor, blaming Everson for the homicide. The court denied the motion, observing that it had instructed the jury prior to summations that the attorneys’ arguments were not evidence and reiterated its instruction in the final charge.

The jury convicted both Everson and Bordies of all charges, including second-degree murder.

The Appellate Division, Fourth Department affirmed, and a dissenting Justice granted Everson leave to appeal to the Court of Appeals.

Held: There was no abuse of discretion under these circumstances.

A court may sever the trials of codefendants jointly charged under a single indictment upon a showing of “good cause,” which may be supported by a determination that a defendant “will be unduly prejudiced by a joint trial.” C.P.L. § 200.40(1). Although a degree of prejudice is inherent in every joint trial, the judicial economy interests served by joinder will not be overcome unless the prejudice is “undue” or “unfair.” See People v. Mahboubian, 74 N.Y.2d 174, 184 (1989). Severance will be required where:

1. the core of each defense is in irreconcilable conflict with the other; and
2. there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt. Id.

The Court of Appeals has found severance required where codefendant’s counsel essentially acts as a “second prosecutor,” eliciting damaging evidence against the defendant. See People v. Cardwell, 78 N.Y.2d 996, 998 (1991) (“compelling prejudice” to appellant caused by codefendant’s adversarial stance against appellant and third codefendant, which triggered the elicitation of damaging evidence about appellant).

Here, the codefendant’s summation alone did not rise to the level of irreconcilable conflict. Apart from the closing argument, the defenses were “remarkably consistent” in their primary focus on discrediting JE. Again, neither defendant called any witnesses nor elicited incriminating evidence against the other on cross. Further, the trial court’s admonitions that the attorneys’ summations were not evidence eliminated any potential prejudice.

CAL Observes: Although the Court did not hold that an argument raised in summation could never create undue prejudice requiring severance, see fn.2, advocates should focus their severance arguments on the evidence actually introduced at trial, the efficacy of the court’s efforts to mitigate any antagonism between codefendants, or lack thereof, and indicia that the antagonism impacted the jury’s verdict.