People v Davey

People v Davey 2009 NY Slip Op 06596 [65 AD3d 936] September 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 4, 2009

The People of the State of New York, Respondent,
v
David Davey, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered August 11, 2008, convicting defendant, after a jury trial, of promoting prison contraband in the first degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's decision to credit the prosecution's case and discredit the defense case.

Defendant's challenges to the People's impeachment use of a statement for which CPL 710.30 notice had not been provided, including defendant's claim that the prosecutor exceeded the scope of the court's ruling on this subject, are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits, since the use of the statement constituted proper impeachment of a defense witness (see People v Campney, 252 AD2d 734, 737 [1998]). We have considered and rejected defendant's claim that his trial counsel rendered ineffective assistance regarding this matter.

We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J., Andrias, Catterson, Acosta and Abdus-Salaam, JJ.