| People v Wilson |
| 2008 NY Slip Op 09211 [56 AD3d 1266] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert A.Wilson, Appellant. |
—[*1] Susan H. Lindenmuth, District Attorney, Penn Yan, for respondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered July 31,2007. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]), arising from hispossession of, inter alia, a drawing of the recreation yard and back area of the jail. Defendantcontends that the evidence is legally insufficient to support the conviction because the Peoplefailed to establish that he possessed dangerous contraband. We reject that contention (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Pursuant to Penal Law §205.25 (2), "[a] person is guilty of promoting prison contraband in the first degree when. . . [b]eing a person confined in a detention facility, he [or she] knowingly andunlawfully makes, obtains or possesses any dangerous contraband." "[T]he test for determiningwhether an item is dangerous contraband is whether its particular characteristics are suchthat there is a substantial probability that the item will be used in a manner that is likely to causedeath or other serious injury, to facilitate an escape, or to bring about other major threats to adetention facility's institutional safety or security" (People v Finley, 10 NY3d 647, 657[2008]). Items that facilitate an escape are properly considered dangerous contraband becausethey endanger the safety or security of a facility (see People v Jones, 134 AD2d 701, 703[1987], lv denied 71 NY2d 969 [1988]). Here, we conclude that the drawing of therecreation yard and back area of the jail is an item that could facilitate escape and thus constitutesdangerous contraband.
We reject the further contention of defendant that he was denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). In addition, weconclude that County Court's "imposition of a sentence more severe than that offered during pleanegotiations does not support the contention of defendant that he was penalized for exercising hisright to go to trial" (People v Kerrick, 37 AD3d 1058, 1059 [2007], lv denied 8NY3d 947 [2007]; see People v Taplin, 1 AD3d 1044, 1046 [2003], lv denied 1NY3d 635 [2004]). Contrary to defendant's further contention, the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). We reject defendant'scontention that the persistent felony offender statute is unconstitutional (see People v [*2]Rivera, 5 NY3d 61, 63 [2005], cert denied 546 US 984[2005]; People v Rosen, 96 NY2d 329, 333-335 [2001], cert denied 534 US 899[2001]), and we further conclude that the court complied with the procedural requirements ofPenal Law § 70.10 in sentencing defendant as a persistent felony offender. Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Martoche, Lunn, Peradottoand Green, JJ.