| People v Callender |
| 2008 NY Slip Op 01657 [48 AD3d 976] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AaronCallender, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Thomas M. Bowes of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered January 5, 2007, upon a verdict convicting defendant of the crime of promotingprison contraband in the first degree.
Defendant, an inmate, was confined to a room and placed on a 24-hour contraband watchunder constant monitoring after correction officers observed him in the visiting room acting asthough he was concealing something on his person. He remained in the contraband watch roomfor a number of days and eventually underwent an X ray, which revealed that he had whatappeared to be razor blades secreted in his rectal cavity. Defendant was then returned to thecontraband watch room where the monitoring continued. After defendant had been in thecontraband watch room for six days, he turned over to a correction officer a cup with variousitems, including a razor blade and sheath. He was subsequently charged in an indictment withpromoting prison contraband in the first degree. Following a jury trial, defendant was foundguilty of the charge and he was sentenced, as a second felony offender, to a prison term of 3 to 6years, to run consecutive to the sentence he was then serving. Defendant appeals.
We turn first to defendant's contention that the verdict is against the weight of the evidence.This inquiry requires us to first determine "[i]f based on all the credible evidence a differentfinding would not have been unreasonable" (People v Bleakley, 69 NY2d 490, 495[*2][1987]; accord People v Romero, 7 NY3d 633, 643 [2006]). If we find thatit would not, we must then, "like the trier of fact below, 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony' " (People v Bleakley, 69 NY2d at 495, quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Romero, 7 NY3d at 643).
The crime of promoting prison contraband in the first degree requires proof that defendant,while confined in a detention facility, knowingly and unlawfully made, obtained or possessed anydangerous contraband (see Penal Law § 205.25 [2]; People v Johnson, 24 AD3d 803,804 [2005]). Here, the testimony of correction officials established that defendant was placed on24-hour contraband watch after he exhibited suspicious behavior in the visiting room of thecorrectional facility, and he surrendered a razor blade and sheath while he was under observation.Defendant's possession of the razor blade was corroborated by medical professionals, whotestified that the X ray revealed that defendant had secreted one or more razor blades in his rectalcavity. Although defendant testified on his own behalf that he did not possess the razor blade andthat he was "set up," his testimony was inconsistent with prior statements that he made whileunder observation. Having opened the door to the introduction of rebuttal testimony, we find noerror in County Court's allowance of such testimony for impeachment purposes (see People vWise, 46 NY2d 321, 325-326 [1978]; People v Martin, 8 AD3d 883, 886 [2004], lv denied 3NY3d 677 [2004]; People v Greene, 306 AD2d 639, 641-642 [2003], lv denied100 NY2d 594 [2003]). Mindful that "[g]reat deference is accorded to the fact-finder'sopportunity to view the witnesses, hear the testimony and observe demeanor" (People vBleakley, 69 NY2d at 495) and, viewing the evidence in a neutral light, we do not find on therecord before us that the verdict is against the weight of the evidence.
Defendant further contends that he was deprived of the effective assistance of counsel by hisattorney's failure to call his mother to testify at trial. However, inasmuch as this claim ispremised on matters outside the present record, it is more properly the subject of a CPL article440 motion (see People v Ponder,43 AD3d 1398, 1400 [2007]; People v Chiera, 255 AD2d 685, 686 [1998]).Defendant's further assertion that he was denied a fair trial by references to his status as aninmate and the lack of a curative instruction has not been preserved for our review and, in anyevent, is lacking in merit.
Peters, J.P., Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.