
    The People of the State of New York, Respondent, v Michael J. Windnagle, Appellant.
   Memorandum: Defendant contends that the indictment was fatally defective under CPL former 200.40 (1), which provided that each defendant must be jointly charged with every offense alleged in the indictment. The first three counts of the indictment jointly charged defendant and his two codefendants with assault in the second degree whereas the fourth count, charging criminal possession of a weapon in the fourth degree, named only the two codefendants. Defendant claims that the misjoinder under count four invalidated the entire indictment. On this record, we disagree. While the record is silent as to disposition of the fourth count of the indictment, defendant concedes that no reference was ever made at trial to such count by either the prosecutor or the court. Hence the misjoinder in no way prejudiced the defendant or deprived him of a fair trial on the counts of the indictment upon which he ‘was charged. (Appeal from judgment of Orleans County Court, Miles, J. — assault, second degree.) Present — Dillon, P. J., Callahan, Doerr, Boomer and Schnepp, JJ.  