People v Chestnut

2011 NY Slip Op 00701

Decided on February 1, 2011

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2011
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
PLUMMER E. LOTT, JJ.
2009-01615
(Ind. No. 658/06)






Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel),
for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John
M. Castellano, Nicoletta J. Caferri, and
Jennifer Hagan of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered February 2, 2009, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

As the People correctly concede, the codefendant should have been tried separately pursuant to CPL 200.40(1) as to the drug counts and resisting arrest count against him, as those counts in no way related to the defendant (see People v Spencer, 67 AD2d 867; People v Banks, 45 AD2d 1024). Although the Supreme Court erred in denying the defendant's motion to sever the unrelated counts applicable only to the codefendant (see CPL 200.40[1]), the error was harmless (see People v Serrano, 74 AD3d 1104, 1107; People v Singson, 40 AD3d 1015, 1016; People v Ortiz, 23 AD3d 499, 1107).
FLORIO, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court