Appeal (1) from a judgment of conviction rendered by the County Court, Kings County, on February 27, 1957 sentencing appellant, after he had been found guilty -by a jury of robbery in the first degree, to serve from 15 to 30 years, as a second felony offender, and (2) from each and every intermediate order therein made. The sentence imposed was to be served concurrently with another sentence imposed by the same court on the same day. Judgment reversed on the law and the facts, and a new trial ordered. The appellant and a eodefendant went to trial under an indictment. After the jury was selected and sworn, the Assistant District Attorney and appellant’s counsel opened their cases. Then appellant moved for a separate trial, and the motion was denied. Neither appellant nor his codefendant testified at the trial. The codefendant produced no witnesses. Appellant produced witnesses to support his defense of an alibi. The basic issue against the appellant was one of identification. A detective testified as to conversations with the codefendant in which the codefendant placed himself at the scene and gave a rather ridiculous explanation for his presence in the home of other witnesses after the crime was committed. The codefendant did not admit committing the crime and blamed another man for the commission of the crime. He did not identify appellant. Counsel for the eodefendant took practically no part in the trial. He did not open to the jury, and he waived summation. After the jury retired, the eodefendant pleaded guilty to robbery in the third degree, unarmed, to cover this indictment and two other indictments. The other two indictments were to be dismissed after the eodefendant was sentenced on this indictment. The jury was not informed of the eodefendant’s plea of guilty and found both appellant and his codefendant guilty as charged. The verdict recorded was one finding appellant guilty of robbery in the first degree. When a defendant does not make a motion for a separate trial prior to the time that the jury is impanelled and sworn, the fact may be taken into consideration by the Trial Judge in the exercise of his discretion in granting or denying the motion (see, e.g., People v. Marcus, 220 App. Div. 697, affd. 246 N. Y. 637;
