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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JORGE VARONA, Appellant.

Defendant's conviction is reversed for the reasons set forth in the memorandum decision in the appeal of the codefendant Jerome Dudley ( 167 A.D.2d 317 [decided herewith]) with respect to the trial court's refusal to permit defendants to offer expert testimony regarding the complaining witness's mental capacity.

We find no merit in the remaining issues raised by this defendant, including the denial of his motion for a severance. Defendant failed to make the requisite showing with respect to potential exculpatory testimony by any of the codefendants and his speculative and conclusory assertions in that regard did not require the trial court to grant the severance sought. (People v. Bornholdt, 33 N.Y.2d 75, 86-87, cert. denied sub nom. Victory v. New York, 416 U.S. 905.)

Concur — Kupferman, J.P., Ross, Carro, Asch and Ellerin, JJ.

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PEOPLE v. VARONA
(Nov 29, 1990)