People v. Linzy — 40 N.Y.2d 915

Majority

p. 915

The People of the State of New York, Respondent, v Clemen Linzy, Appellant.

Argued October 15, 1976;

decided October 28, 1976

p. 916

Arlington R. Gleckner for appellant.

D. Bruce Crew, III, District Attorney (Richard L. Parker of counsel), for respondent.

Order affirmed. In view of uncontradicted assertions in the briefs concerning the granting of a severance only on condition of defendant waiving a jury trial, but absent support in the record, defendant’s remedy is by motion to vacate the judgment under CPL 440.10 (subd 1, par [f]). In so holding the court, of course, expresses no view as to how such motion should be decided.

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke.