| People v Davison |
| 2009 NY Slip Op 04478 [63 AD3d 1537] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdisonDavison, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedSeptember 22, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree (two counts), bribing a witness, petit larceny (two counts), criminal possession ofstolen property in the fifth degree (two counts), criminal possession of a weapon in the fourthdegree and menacing in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of bribing a witness and dismissing count four of theindictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of robbery in the first degree (Penal Law § 160.15 [3]) and one countof bribing a witness (§ 215.00 [a]). The People correctly concede that the part of thejudgment convicting defendant of bribing a witness must be reversed because that count of theindictment had been dismissed before commencement of the trial and was mistakenly submittedto the jury (see People v Romero, 309 AD2d 953 [2003], lv denied 1 NY3d 579[2003]; People v Smiley, 303 AD2d 425, 426 [2003], lv denied 100 NY2d 542[2003]). We therefore modify the judgment accordingly. Defendant failed to preserve for ourreview his further contention that he was prejudiced by the introduction of evidence concerningthe mistakenly submitted count (see Smiley, 303 AD2d at 426; People vCastellano, 284 AD2d 406 [2001], lv denied 97 NY2d 680 [2001]) and, in anyevent, that contention lacks merit. "[T]he paramount consideration in assessing potentialspillover error is whether there is a 'reasonable possibility' that the jury's decision to convict onthe [mistakenly submitted] count[ ] influenced its guilty verdict on the remaining counts in a'meaningful way' " (People v Doshi, 93 NY2d 499, 505 [1999]), and that cannot be saidhere (see generally People v Williams, 292 AD2d 474 [2002]). Contrary to the furthercontentions of defendant, he was not denied effective assistance of counsel (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]), and the sentence is not unduly harsh or severe.Present—Smith, J.P., Centra, Fahey, Carni and Gorski, JJ.