| People v Watkins |
| 2008 NY Slip Op 01871 [49 AD3d 908] |
| March 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MalakieWatkins, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Greene County (Pulver, Jr., J.),rendered October 11, 2005, upon a verdict convicting defendant of the crime of promoting prisoncontraband in the first degree, and (2) by permission, from an order of said court, entered January11, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
After a jury trial, defendant was found guilty of promoting prison contraband in the firstdegree arising out of an incident at Greene Correctional Facility in Greene County in which acorrection officer observed him discard two sharpened metal rods. Defendant was sentenced as asecond felony offender to a prison sentence of 3½ to 7 years, and his CPL 440.10 motion tovacate the judgment was denied. He now appeals from both the judgment and order.
Defendant's argument that the verdict is not supported by the weight of evidence is basedupon the premise that the jury should have credited his assertedly more credible account over thatof the testifying correction officer, a proposition we find to be unsupported by the record.According deference to the jury's first-hand ability to evaluate the conflicting accounts of theincident and to assess the credibility of the witnesses, we find no reason to disagree with itsimplicit decision to believe the officer's account that defendant himself in fact discarded the[*2]metal rods—dangerous contraband—whenapproached by the officer (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Camerena, 42 AD3d 814,815 [2007], lv denied 9 NY3d 921 [2007]; see also Penal Law § 205.25[2]). We perceive no deficiency or lack of believability in the officer's testimony, which wascorroborated in part by the testimony of an officer who responded to the incident. Defendant'stestimony, otherwise unsupported, denying discarding the rods and claiming that other inmateswere nearby, presented a credibility issue which we see no reason to question (see People vHodge, 290 AD2d 582, 584 [2002], lv denied 97 NY2d 755 [2002]).
We are also unpersuaded that County Court abused its discretion in permitting the prosecutorto impeach defendant regarding his conviction for attempted murder (for which he wasincarcerated) and with 12 prison disciplinary reports (without the details or specific charges).These prior acts bore directly on defendant's credibility and willingness to further his owninterests at the expense of society; it cannot be said that their potential prejudice outweighed theirprobativeness on defendant's believability as a witness so as to warrant their exclusion (see People v Grant, 7 NY3d 421,425-426 [2006]; People v Hayes, 97 NY2d 203, 208 [2002]; People v Gray, 84NY2d 709, 712 [1995]; People vAdams, 39 AD3d 1081, 1082 [2007], lv denied 9 NY3d 872 [2007]). Also, thecourt instructed the jury at the time the testimony was elicited and in its final charge regardingthe limited purpose of the testimony[FN*](see People v Montgomery, 22AD3d 960, 963 [2005]).
Next, we agree that the prosecutor's inquiry of defendant on cross-examination regarding hiswearing at trial of "a religious cap" and the length of time he had been affiliated with that religionand worn it—apparently to undermine defendant's perceived attempt to influence thejury—was better left unsaid (seePeople v Johnson, 3 AD3d 581, 582 [2004], lv denied 2 NY3d 763 [2004];see also People v Wood, 66 NY2d 374, 378-381 [1985]; People v Pizzaro, 7 AD3d 395[2004], lv denied 3 NY3d 680 [2004]; People v Williams, 131 AD2d 525 [1987],lv denied 70 NY2d 718 [1987]). However, we find no substantial prejudice from this orany other claimed misconduct during summation, none of which was objected to or operated todeprive defendant of a fair trial (see People v Tarantola, 178 AD2d 768, 770 [1991],lv denied 79 NY2d 954 [1992]). Further, given defendant's testimony, the prosecutor wasentitled in summation to point out the lack of any evidence to corroborate his claims that otherinmates were present, which did not shift the burden of proof to defendant (see People vYoumans, 292 AD2d 647, 648 [2002], lv denied 98 NY2d 704 [2002]; People vOverlee, 236 AD2d 133, 142-143 [1997], lv denied 91 NY2d 976 [1998]; cf. People v Allen, 13 AD3d 892,898 [2004], lv denied 4 NY3d 883 [2005]).
Given that defendant has not demonstrated or argued the "absence of strategic or [*3]legitimate reasons" for not calling the inmates allegedly present atthe incident (People v Cancer, 16AD3d 835, 840 [2005], lv denied 5 NY3d 826 [2005]) and that the record otherwisereflects that defendant received competent and vigorous representation, we find defendant hasnot met his burden on his claim of ineffective assistance (see People v Hobot, 84 NY2d1021, 1022 [1995]). Also, defendant's CPL 440.10 motion was properly denied without a hearingas defendant did not show that the exculpatory affidavit of another inmate could not, with duediligence, have been discovered and produced prior to trial (see CPL 440.10 [1] [g]; People v Thorsen, 20 AD3d 595,598 [2005], lv denied 5 NY3d 810 [2005]; see also People v Wong, 256 AD2d724, 726 [1998], lv denied 93 NY2d 903 [1999]).
Defendant's remaining claims, most unpreserved, lack merit, including his assertions withrespect to County Court's Allen charge and the supervision of the deliberating jury, andhis challenge to the sentence as harsh and excessive.
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *: While County Court'sinstructions specifically referred only to defendant's prior conviction and not his disciplinaryrecord, no objections were raised to the charge and, in any event, it adequately conveyed themessage that evidence of unrelated prior bad acts was relevant only to credibility.