People v. Everson: Summation Finger-Pointing, Without More, Does Not Compel Severance Under CPL 200.40

Introduction

In People v. Everson, 2025 NY Slip Op 05738 (N.Y. Oct. 16, 2025), the New York Court of Appeals confronted a recurring problem in multi-defendant prosecutions: when does antagonism between co-defendants require severance under Criminal Procedure Law (CPL) 200.40? The defendant, James Everson, and his co-defendant, Amir Bordies, were jointly tried for a drive-by, acting-in-concert shooting that resulted in a homicide. The centerpiece of Everson’s appeal was that the trial court abused its discretion by refusing to sever his trial from Bordies’s after Bordies’s counsel used closing argument to point the finger squarely at Everson as one of the shooters.

Writing for a unanimous Court, Judge Cannataro affirmed the denial of severance. The Court clarified that where the trial evidence is the same as to both defendants, no antagonism rises to an “irreconcilable conflict” requiring severance merely because a co-defendant’s summation argues an inference of the other’s guilt—particularly where the court gives standard instructions that arguments are not evidence and that the jury must consider the proof separately as to each defendant. While reaffirming the demanding standard for severance in joint trials, the Court also distinguished the line of cases where a co-defendant’s counsel effectively becomes a “second prosecutor” by eliciting damaging evidence against the defendant during the evidentiary phase.

Summary of the Opinion

The Court of Appeals held there was no abuse of discretion in denying severance under CPL 200.40(1). The decision rests on three pillars:

The prosecution’s proof overlapped entirely for both defendants (eyewitness JE; statements to former girlfriend NL; surveillance; ballistics), triggering the strong policy favoring joinder and the “most cogent reasons” requirement for severance in acting-in-concert cases.
Any antagonism materialized only at summation: co-defendant’s counsel argued that the evidence supported the conclusion that Everson was one of the two shooters and urged that JE, not Bordies, was the second shooter. No party elicited incriminating evidence against the other during testimony, and both defenses largely focused on discrediting JE.
The trial court gave standard instructions that attorneys’ arguments are not evidence and that the jury must consider the proof separately as to each defendant. The jury is presumed to follow such instructions, and conflict confined to argument could not form the basis of the verdict.

Distinguishing cases where a co-defendant’s counsel functioned as a “second prosecutor” by eliciting damaging evidence (People v. Cardwell), the Court concluded no “undue” or “unfair” prejudice was shown. The Court also rejected Everson’s sufficiency challenge under People v. Danielson and affirmed the Appellate Division.

Background and Procedural Posture

The People charged Everson and Bordies, on an acting-in-concert theory, with intentional second-degree murder (Penal Law § 125.25[1]) and four counts of second-degree weapon possession (Penal Law § 265.03[1][b], [3]) following a drive-by shooting into a crowd at a park in the early morning of July 13, 2019. The theory was retaliation for an earlier shooting that injured Bordies.

At trial, the third occupant of the vehicle (JE) testified both Everson and Bordies fired guns from the vehicle. Everson’s former girlfriend (NL) testified he was driving her car that night; that he returned to her apartment with Bordies and JE; and that he showed her two black guns and said he had “just killed somebody,” though he quickly claimed to be kidding. Surveillance captured the movements of a vehicle matching NL’s, and ballistics were consistent with two firearms. The shooting itself was not captured.

Before trial, Everson moved to sever on the ground that Bordies’s counsel intended to argue Everson was responsible; the court denied the motion as speculative, reserving the issue. During summations, Bordies’s counsel argued that one shooter was “Mr. Everson because he told his girlfriend that” he did it, and challenged JE’s credibility as to Bordies, suggesting JE could have been the second shooter. Everson renewed the severance motion; the court denied it, relying on instructions that argument is not evidence and the jury must consider the evidence as to each defendant individually. The jury convicted Everson on all counts; the Appellate Division affirmed over a dissent. The Court of Appeals granted leave and affirmed.

Detailed Analysis

Precedents Cited and Their Influence

People v. Mahboubian, 74 NY2d 174 (1989)

Mahboubian is the touchstone for severance of jointly indicted defendants in New York. It articulates:

The strong public policy favoring joinder—especially where defendants are charged as acting in concert—because joint trials expedite proceedings, reduce congestion, and avoid recalling witnesses.
The “most cogent reasons” standard for severance when the same proof applies to both defendants.
The two-part test for antagonistic defenses requiring severance: (1) “the core of each defense is in irreconcilable conflict with the other,” and (2) “there is a significant danger… that the conflict alone would lead the jury to infer defendant’s guilt.”

Everson leans heavily on Mahboubian. The Court found that outside of summation, both defenses were aligned in attempting to discredit JE, and neither elicited incriminatory evidence against the other. Thus, there was no “irreconcilable conflict” at the core of the defenses during the evidentiary phase, nor a significant danger that conflict alone would lead to an inference of guilt.

People v. Cardwell, 78 NY2d 996 (1991)

Cardwell stands for the proposition that severance is required when co-defendant’s counsel effectively becomes a “second prosecutor” and elicits damaging evidence against the defendant. The Court in Everson distinguishes Cardwell: Bordies’s counsel did not elicit damaging evidence or engage in prosecutorial conduct during the evidentiary phase; the antagonism occurred only in argument. The absence of “second prosecutor” conduct limited the prejudice and kept the case within the ambit of permissible joinder.

People v. Bornholdt, 33 NY2d 75 (1973)

Bornholdt reinforces that severance is an exercise of trial-level discretion reviewed for abuse. Everson applies this deferential standard to uphold the trial court’s judgment that severance was not warranted on this record.

People v. Baker, 14 NY3d 266 (2010)

Baker stands for the presumption that juries follow the court’s instructions. Everson uses Baker to conclude that, because the court instructed that summations are not evidence and that the jury must assess the evidence separately for each defendant, antagonistic closing remarks cannot be deemed the basis of the verdict.

People v. Danielson, 9 NY3d 342 (2007)

Danielson frames the legal sufficiency standard: whether, viewing the evidence in the light most favorable to the People, there is a valid line of reasoning and permissible inferences for a rational jury to find each element proved beyond a reasonable doubt. Everson invokes Danielson to reject the sufficiency challenge concerning the murder and weapons counts, given JE’s testimony, NL’s testimony, and corroborative surveillance and ballistics.

United States v. Pérez-Vázquez, 6 F.4th 180, 201 (1st Cir. 2021)

In a comparative footnote, the Court notes that it need not decide whether a summation argument could ever create undue prejudice requiring severance and cites Pérez-Vázquez (rejecting a mistrial motion based on closing argument). The reference signals alignment with a broader judicial reluctance to convert contentious summations—standing alone—into grounds for severance or mistrial, while leaving the door ajar for exceptional cases.

Legal Reasoning

Standard and Policy Baseline: Under CPL 200.40(1), severance requires “good cause,” meaning undue prejudice from a joint trial. The Court reiterates that some prejudice is inherent in joint trials, and only “undue” or “unfair” prejudice warrants severance. Where the same evidence supplies proof against both defendants—particularly under an acting-in-concert theory—“only the most cogent reasons” justify severance (Mahboubian).
The Mahboubian Irreconcilability Test: The Court applies the two-part test. It finds no irreconcilable conflict in the “core” defenses during the evidentiary phase: both defendants primarily sought to undermine JE’s credibility; neither introduced or elicited incriminating testimony against the other; and the People’s proof was unitary. The antagonism emerged only during summation.
Summations Are Not Evidence: The trial court instructed the jury before summations and again in the final charge that attorneys’ arguments are not evidence and that the evidence must be assessed separately as to each defendant. Emphasizing Baker’s presumption that juries follow instructions, the Court reasons that conflict confined to closing arguments “could not have formed the basis of the jury’s verdict.” This breaks the causal link between argumentative finger-pointing and undue prejudice.
Distinguishing “Second Prosecutor” Cases: Everson explicitly contrasts the case with Cardwell, where co-defendant’s counsel elicited damaging evidence, thereby functioning as a second prosecutor—conduct that creates “compelling prejudice” and mandates severance. In Everson, there was no such evidentiary misconduct; the summation drew inferences from admitted evidence (including Everson’s statement to NL) and did not alter the evidentiary landscape.
Timing and Speculation: The trial court had initially denied severance as speculative, while reserving the right to revisit. Even after summation crystallized the antagonism, the Court held that severance was not required given the limiting instructions and the lack of evidentiary prejudice. This underscores that late-breaking antagonism in argument, without more, does not translate to reversible error.
Sufficiency of the Evidence: On the separate sufficiency claim, the Court—viewing the proof in the light most favorable to the People—found the combination of eyewitness identification, Everson’s post-incident admission to NL, corroborative surveillance, and ballistics consistent with two firearms sufficient to sustain the convictions.

Impact and Implications

Everson refines New York’s severance doctrine in a practical way that will influence trial strategy in multi-defendant prosecutions:

Summation Finger-Pointing is Insufficient, Standing Alone: Defense counsel should not expect severance—or a mistrial—merely because a co-defendant, in closing, argues an inference that the other defendant committed the crime. Absent evidentiary-phase prejudice (e.g., a co-defendant eliciting incriminating testimony), limiting instructions will usually suffice.
Heightened Emphasis on Limiting Instructions: Trial courts can rely on standard instructions that arguments are not evidence and that the jury must assess the evidence separately as to each defendant. Counsel opposing joinder must be prepared to show why instructions will not cure the risk—a high bar on this record.
Preserving and Proving “Irreconcilability”: Moving parties must make specific, non-speculative showings that the core defenses are truly irreconcilable, and that the conflict—not merely the prosecution’s case—will likely lead the jury to infer guilt. Generalized predictions of antagonism, or late-occurring tensions in summation, will rarely suffice.
Cardwell Still Matters—But It’s Narrow: If a co-defendant’s counsel “functions as a second prosecutor” by eliciting damaging evidence inadmissible against the defendant, severance remains required. Everson shows that Cardwell does not apply where the antagonism is confined to argument based on admitted proof.
Acting-in-Concert Prosecutions Remain Joinder-Friendly: The decision reinforces the institutional preference for joint trials in concerted action cases, where the same evidence applies to all, minimizing duplicative testimony and witness burden.
Open Question Left for Another Day: The Court explicitly declines to decide whether a summation could ever create undue prejudice requiring severance, while citing federal authority rejecting a mistrial based solely on closing argument. That caveat leaves room for exceptional circumstances—such as improper argument that injects facts not in evidence or violates a specific trial right—where severance or mistrial might be appropriate.

Complex Concepts Simplified

Severance (CPL 200.40[1]): In joint indictments, a court can order separate trials for co-defendants for “good cause,” typically to prevent undue prejudice to a defendant that would result from a joint trial.
Acting in Concert: New York’s theory of accomplice liability allows the People to hold participants criminally liable for a crime if they intentionally aid, request, or encourage its commission. In such cases, proof often overlaps significantly among defendants.
Irreconcilable Defenses: Not mere differences in strategy. Severance is required only where (1) the core of each defense is fundamentally incompatible with the other and (2) the conflict itself, independent of the People’s case, poses a significant risk that the jury will infer guilt.
“Second Prosecutor” Problem: When a co-defendant’s counsel elicits damaging evidence against a defendant—effectively doing the People’s work—this “compelling prejudice” can require severance (Cardwell).
Summation vs. Evidence: Closing arguments are advocacy, not evidence. Courts routinely instruct juries not to treat arguments as proof. Appellate courts presume juries follow those instructions.
Abuse of Discretion: A deferential standard. Appellate courts will not disturb a trial court’s severance determination unless it falls outside the range of reasonable choices under the circumstances.
Legal Sufficiency: The question is whether, taking the evidence in the light most favorable to the prosecution, a rational juror could find all elements beyond a reasonable doubt—not whether the appellate court believes the verdict was correct.

Practice Notes

For Defense Counsel: If severance is sought, make a detailed proffer of how the co-defendant’s defense will be irreconcilable at the core and why limiting instructions will be inadequate. Monitor the evidentiary phase; if the co-defendant elicits damaging evidence, renew severance promptly and request tailored curatives. If antagonism first emerges in summation, object to improper comments (e.g., facts not in evidence) and seek targeted curative instructions.
For Prosecutors: Emphasize the overlap in proof and the efficiency benefits of joinder. Support limiting instructions and highlight the absence of evidentiary-phase antagonism to oppose severance.
For Trial Judges: Build a clear record on the overlap of proof and the adequacy of instructions. Where antagonism appears only in argument, give strong, specific final instructions that the jury must consider the evidence separately for each defendant and that argument is not evidence.

Conclusion

People v. Everson reinforces New York’s long-standing preference for joint trials in acting-in-concert prosecutions and clarifies that a co-defendant’s summation that points the finger—without more—does not amount to the kind of irreconcilable conflict or undue prejudice that compels severance under CPL 200.40. The Court’s reasoning rests on the absence of evidentiary-phase antagonism, the comprehensive overlap of proof, and the presumption that juries heed instructions that arguments are not evidence and that each defendant must be considered separately.

By distinguishing the “second prosecutor” scenario of Cardwell and reaffirming the Mahboubian framework, Everson provides clear guidance: antagonism confined to closing advocacy will rarely justify severance. At the same time, the Court prudently leaves open the possibility—reserved for a different record—that summation alone could create undue prejudice in an exceptional case. The decision thus supplies both a practical rule for everyday joint trials and a doctrinal safety valve for extraordinary circumstances, stabilizing severance doctrine while preserving judicial discretion.