| People v Colon-Velazquez |
| 2019 NY Slip Op 03845 [172 AD3d 1621] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Frankie Colon-Velazquez, Appellant. |
Michael P. Graven, Owego, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie Marmor of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered March 3, 2017, upon a verdict convicting defendant of the crime of promoting prisoncontraband in the first degree.
Following a strip search of defendant, who was an inmate at a correctional facility, acorrection officer discovered a pointed and sharpened weapon. In connection with this incident,defendant was charged by indictment with promoting prison contraband in the first degree.Following a jury trial, defendant was convicted as charged and sentenced to a term ofimprisonment. Defendant appeals. We affirm.
As relevant here, promoting prison contraband in the first degree requires that the Peopleprove that defendant, "[b]eing a person confined in a detention facility, . . .knowingly and unlawfully . . . possesse[d] any dangerous contraband" (Penal Law§ 205.25 [2]). Defendant contends that the verdict was not supported by legallysufficient evidence or, in the alternative, was against the weight of the evidence. In particular,defendant claims that the evidence did not establish that he possessed the discovered weapon.We disagree.
At trial, a correction officer testified that the inmates were being screened through metaldetectors as they proceeded to the gym for recreation. While defendant was passing through oneof the metal detectors, the lights alerted the correction officer to the possibility of the presence ofmetal. An address book and an identification card were retrieved, and defendant was re-sentthrough the metal detector, which again alerted. The correction officer testified that a subsequentpat frisk and scan from a chair metal detector did not reveal any contraband. The correctionofficer then conducted a strip search of defendant. During the strip search, defendant handed thecorrection officer his boxer shorts. The correction officer stated that attached to the boxer shortswas a weapon, which he described as "plastic, about five inches long . . . [that] hada piece of cloth wrapped around the base of it, sharpened to a point."
Viewing the evidence in the light most favorable to the People, we find that there exists avalid line of reasoning and permissible inferences that could lead a rational juror to conclude thatdefendant possessed the discovered weapon (see People v Reynolds, 283 AD2d 771, 773[2001], lv denied 96 NY2d 866 [2001]; People v Nunez, 186 AD2d 317, 318[1992], lv denied 81 NY2d 765 [1992]). As to defendant's claim that the verdict wasagainst the weight of the evidence, given that defendant testified that he did not have any itemshidden in his boxer shorts, a contrary result would not have been unreasonable. Nevertheless,viewing the evidence in a neutral light, we are satisfied that the verdict was supported by theweight of the evidence (see People vBreedlove, 61 AD3d 1120, 1121 [2009], lv denied 12 NY3d 913 [2009]; People v Montgomery, 8 AD3d881, 882 [2004], lv denied 3 NY3d 678 [2004]; People v Hodge, 290 AD2d582, 584 [2002], lv denied 97 NY2d 755 [2002]; People v Livingston, 262 AD2d786, 787-788 [1999], lv denied 94 NY2d 881 [2000]). Although defendant testified to acontrary version of events, the jury was entitled to reject such version (see People v Amato, 1 AD3d 713,716 [2003], lv denied 1 NY3d 594 [2004]; People v Al-Shimari, 266 AD2d 586,587 [1999], lv denied 94 NY2d 916 [2000]). Nor do we find merit in defendant'scontention that a chain of custody for the admission of the weapon into evidence was notsufficiently established (see People v Hatzipavlou, 175 AD2d 969, 969 [1991], lvdenied 79 NY2d 827 [1991]).[FN*]
Defendant also claims that County Court erred by not precluding the correction officer fromtestifying after the People committed a Rosario violation. According to defendant, aRosario violation occurred because the audio recording that he received of the correctionofficer's testimony given at defendant's prison disciplinary hearing had gaps in it. Defendant hadargued that these gaps prevented him from meaningfully cross-examining the correction officer,thereby requiring that the correction officer be precluded from testifying. Initially, we disagreewith defendant's characterization that a Rosario violation occurred because "statements ofwitnesses made during [a] prison disciplinary proceeding [are] not within the People's controland [do] not constitute Rosario material" (People v Howard, 87 NY2d 940, 941,[1996]; see People v Livingston, 262 AD2d at 790). Even assuming that the audiorecording constituted Rosario material, we conclude that County Court's decision to givean adverse inference instruction, as opposed to precluding the correction officer's testimony, wasnot an abuse of discretion (see People vWheeler, 159 AD3d 1138, 1142 [2018], lv denied 31 NY3d 1123 [2018]).Defendant's remaining contentions, to the extent not specifically discussed herein, have beenexamined and are without merit.
Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We note that defendant did notobject when the People sought to have the weapon admitted into evidence and, in any event, anygaps in the chain of custody pertain to the weight to be accorded to such evidence (see People v Torres, 146 AD3d1086, 1088 [2017], lv denied 29 NY3d 1087 [2017]).