PEOPLE v. DAVISON (2009)

 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 count of bribing a witness (§ 215.00[a] ).   The People correctly concede that the part of the judgment convicting defendant of bribing a witness must be reversed because that count of the indictment had been dismissed before commencement of the trial and was mistakenly submitted to the jury (see People v. Romero, 309 A.D.2d 953, 766 N.Y.S.2d 369, lv. denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908;  People v. Smiley, 303 A.D.2d 425, 426, 755 N.Y.S.2d 870, lv. denied 100 N.Y.2d 542, 763 N.Y.S.2d 8, 793 N.E.2d 422). We therefore modify the judgment accordingly.   Defendant failed to preserve for our review his further contention that he was prejudiced by the introduction of evidence concerning the mistakenly submitted count (see Smiley, 303 A.D.2d at 426, 755 N.Y.S.2d 870;  People v. Castellano, 284 A.D.2d 406, 726 N.Y.S.2d 281, lv. denied 97 N.Y.2d 680, 738 N.Y.S.2d 295, 764 N.E.2d 399) and, in any event, that contention lacks merit.  “[T]he paramount consideration in assessing potential spillover error is whether there is a ‘reasonable possibility’ that the jury's decision to convict on the [mistakenly submitted] count[ ] influenced its guilty verdict on the remaining counts in a ‘meaningful way’ ” (People v. Doshi, 93 N.Y.2d 499, 505, 693 N.Y.S.2d 87, 715 N.E.2d 113), and that cannot be said here (see generally People v. Williams, 292 A.D.2d 474, 740 N.Y.S.2d 348).   Contrary to the further contentions of defendant, he was not denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of bribing a witness and dismissing count four of the indictment and as modified the judgment is affirmed.

MEMORANDUM: