| People v Cooper |
| 2009 NY Slip Op 08711 [67 AD3d 1254] |
| November 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BernardCooper, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County (Buckley,J.), rendered January 3, 2008, upon a verdict convicting defendant of the crimes of promotingprison contraband in the first degree (two counts), criminal possession of a controlled substancein the seventh degree and unlawful possession of marihuana.
Defendant, an inmate at Southport Correctional Facility in Chemung County, was convictedafter a jury trial of various crimes relating to the possession of heroin and marihuana, on thetheory that the contraband was passed to him by his wife during a visit on December 3, 2005.Prison officials received a note from a confidential informant indicating that defendant hadrecently brought contraband into the prison, that defendant would be receiving more onDecember 3, 2005, and that inmates were sending money to the address of defendant's wife.Correction Sergeant Stan Sepiol, a supervisor at the facility, confirmed that transfers were madefrom inmate accounts to the address in the informant's note. Defendant was permitted to visitwith his wife on December 3, 2005 and Sepiol testified that video surveillance did not revealanything suspicious during the visit.
Acting on the informant's tip, Sepiol and fellow correction officers approached defendant'scell to conduct a search shortly after defendant returned from the visit. Officers [*2]witnessed defendant throw something into the commode as theyapproached, prompting them to search defendant, which revealed five balloons of contraband indefendant's pocket. According to a forensic laboratory report from the State Police, thecontraband included 30.5 grams of marihuana and 0.06 grams of heroin. Officers concluded thatdefendant had concealed the contraband in his rectum.
Upon the close of the People's case, defense counsel moved to dismiss pursuant to CPL290.10 on the basis that the People failed to prove that the items recovered were dangerouscontraband. County Court denied the motion and defendant failed to renew his application at theclose of all evidence; hence, the argument was not preserved for appellate review (see Peoplev Hines, 97 NY2d 56, 61 [2001]). Nevertheless, in connection with our determination thatdefendant's convictions are not against the weight of the evidence (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Gonzalez, 64 AD3d 1038, 1040[2009], lv denied 13 NY3d 796 [2009]), and cognizant that the Court of Appeals hasrecently held that small (noncriminal) amounts of marihuana do not constitute dangerouscontraband (see People v Finley, 10 NY3d 647 [2008]), we address the circumstancessupporting defendant's convictions for promoting prison contraband in the first degree.
The offense of promoting prison contraband in the first degree prohibits possession of"dangerous contraband" and is punishable as a felony, whereas promoting prison contraband inthe second degree prohibits possession of "contraband" and is punishable as misdemeanor(compare Penal Law § 205.20 [2] with Penal Law § 205.25 [2]).The Court of Appeals in Finley emphasized the noncriminal quantities of marihuana atissue in the cases before it (People v Finley, 10 NY3d at 658). Although the Court ofAppeals rejected the argument that the mere illegality of a substance qualifies it as dangerouscontraband (id. at 658 n 8), the Court left open the question of whether illegal quantitiesof marihuana could be deemed dangerous contraband (id. at 658; see People vTrank, 58 AD3d 1076, 1077 [2009], lv denied 12 NY3d 860 [2009]).[FN1]The Court concluded that "the test for determining whether an item is dangerouscontraband is whether its particular characteristics are such that there is a substantial probabilitythat the item will be used in a manner that is likely to cause death or other serious injury, tofacilitate an escape, or to bring about other major threats to a detention facility's institutionalsafety or security" (People v Finley, 10 NY3d at 657).
In contrast to the amounts of marihuana at issue in Finley, possession of the drugs atissue in this case was illegal and punishable as misdemeanor offenses (see Penal Law§§ 220.03, 221.10 [2]).[FN2]The evidence indicates that defendant's wife was paid by inmates in advance to import illegalquantities of both marihuana and heroin into prison for use by inmates. This process involveddefendant's wife somehow defeating prison security checks and defendant's [*3]unsanitary method of concealing the drugs he apparently intendedto distribute to other inmates. Moreover, according to the informant, this was not the firstinstance in which defendant smuggled drugs into the prison.
Defendant's success in importing drugs in this manner may encourage others to do the samewith drugs or other contraband. Trial testimony established that Southport is a maximum securityfacility for problem inmates and that possession of heroin and marihuana by those inmates maylead to dangerous confrontations involving inmates and facility staff, as well as disciplinaryproblems. In our view, defendant's possession of illegal quantities of marihuana and heroin,together with the circumstances in which they were imported and concealed and defendant'sapparent intent to distribute them to other inmates, reveal a substantial probability that the drugswill be used in a manner likely to cause death or other serious injury or bring about other majorthreats to Southport's institutional safety or security (see People v Finley, 10 NY3d at657). Accordingly, the weight of the evidence supports defendant's convictions, including hisconvictions for promoting prison contraband in the first degree.
Next, defendant's challenge to County Court's charge to the jury on reasonable doubt is notpreserved for our review (see People v Richard, 30 AD3d 750, 754-755 [2006], lvdenied 7 NY3d 869 [2006]). In any event, defendant's claim would fail. We note that thecourt's charge mirrored the charge recommended in the Criminal Jury Instructions (seeCJI2d[NY] Presumption of Innocence, Burden of Proof, Proof Beyond a Reasonable Doubt),which is the " 'preferred phrasing to convey the concept' " (People v Perkins, 27 AD3d890, 893 [2006], lv denied 6 NY3d 897 [2006], quoting People v Cubino, 88NY2d 998, 1000 [1996]; see People v Fairley, 63 AD3d 1288, 1290 [2009], lvdenied 13 NY3d 743 [2009]; People v Fogarty, 12 AD3d 854, 857 [2004], lvdenied 4 NY3d 763 [2005]).
We have reviewed defendant's remaining contentions and find them to be without merit.
Cardona, P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Prior to Finley, thepossession of marihuana supported convictions for promoting prison contraband in the firstdegree (see e.g. People v McCrae, 297 AD2d 878 [2002], lv denied 1 NY3d 576[2003]).
Footnote 2: Even a small amount of heroinhas been found to be potentially dangerous in the context of the inmate population of acorrectional facility (see People v Watson, 162 AD2d 1015 [1990]; see also People vFinley, 10 NY3d at 657).