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Spillover Error On Multi-Count Indictments

People v. Concepcion

New York Court of Appeals 

Decided June 2011

17 N.Y.3d 194

Issue: Whether the conviction on one count could provide “spillover” error on other counts before the jury.

Holding: “Spillover” error must be decided on a case by case basis to determine whether sufficient evidence exists to support each count.

Facts:Reynaldo Concepcion was arrested for shooting Stephen Brown. The defendant’s minivan was searched and one-half ounce of cocaine recovered.

Defendant moved to suppress physical evidence, People argued he consented to the search, or alternatively, that the drugs were admissible under the inevitable discovery doctrine. The trial judge determined People failed to establish defendant’s consent, but that the cocaine would have inevitably been discovered.

Defendant was acquitted of attempted murder and convicted of second-degree weapon possession, drug possession assault. The trial court sentenced him to 10 years.

On appeal the People conceded the inevitable discovery doctrine was not applicable, argued defendant consented to the search. Appellate Division agreed, upheld the denial of suppression on a basis that Supreme Court had squarely rejected. Defendant unsuccessfully moved to reargue.

Legal Analysis:CPL 470.15 (1) bars that court Appellate Division  from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court, and CPL 470.35 (1) grants us no broader review powers in this regard. We had “construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court”.

Appellate Division’s decision with respect to suppression was clearly erroneous CPL 470.15 (1) precludes that court from affirming denial of suppression on the basis of consent because the trial judge ruled in defendant’s favor on this issue. All that remains for us to decide on this appeal, then, is the proper remedy for this mistake. We must decide whether granting suppression would be harmless with respect to defendant’s conviction for these other crimes.

Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts . . . can only be resolved on a case-by-case basis.

The paramount consideration in assessing “Spillover” error is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way. (People v Doshi, 93 NY2d 499, 505).

In this case, there is no reasonable possibility that the evidence supporting the potentially tainted count, a drug possession crime related to the cocaine discovered in defendant’s vehicle, had a spillover effect on the guilty verdicts for weapon possession and assault. Proof of these latter crimes was furnished by the testimony of the victim. While in an ambulance the victim identified defendant to the police his assailant by nickname and appearance. He also described the color and make of the shooter’s vehicle, which matched the minivan driven by defendant.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.