
    The People of the State of New York, Plaintiff, v. Mario Gugino et al., Defendants.
    County Court, Erie County,
    August 15, 1961.
    
      
      Carman F. Ball, District Attorney (George B. Blair of counsel), for plaintiff. Sheldon M. Markel for Mario Gugino, defendant.
   Burke I. Burke, J.

This is a motion to grant the defendant, Mario Gugino, a trial separate from the other defendants herein. The indictment contains counts of burglary in the first degree and attempted robbery in the first degree occurring on December 31, 1958.

Previously, and in July, 1959, the said six defendants were tried on felony murder charges arising out of the same transaction, the defendant Daniel Di Lapo having been convicted of assault in the first degree, and the other defendants acquitted by a County Court jury.

Information before the court indicates that the number of defendants has been reduced from six to five by the withdrawal as an active participant of the late Vincent Santangelo.

The jury which heard and determined the issues in the earlier trial distinguished the proof against the various defendants, as shown by its verdict. It is not apparent that a joint trial would prejudice the defendant, and separate trials would impede the course of justice. The motion is denied.  