| People v Aponte |
| 2009 NY Slip Op 01884 [60 AD3d 1199] |
| March 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GeorgeAponte, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria Esposito-Shea of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered August 18, 2007, upon a verdict convicting defendant of the crime of promoting prisoncontraband in the first degree.
While defendant was incarcerated at Ogdensburg Correctional Facility in St. LawrenceCounty, correction officer Kenneth Race found a sharpened piece of metal in defendant's pocketduring a search. Defendant was charged with promoting prison contraband in the first degree.Defendant was found guilty as charged in the indictment, prompting this appeal. We affirm.
Defendant's conviction was based upon legally sufficient evidence and was not against theweight of the evidence. A defendant confined in a detention facility is guilty of promoting prisoncontraband in the first degree when he or she "knowingly and unlawfully makes, obtains orpossesses any dangerous contraband" (Penal Law § 205.25 [2]). An item is dangerouscontraband if "its particular characteristics are such that there is a substantial probability that theitem will be used in a manner that is likely to cause death or other serious injury, to facilitate anescape, or to bring about other major threats to a detention facility's institutional safety orsecurity" (People v Finley, 10NY3d 647, 657 [2008]; see Penal Law § 205.00 [4]).
On this appeal, defendant does not dispute that the evidence was sufficient to prove that theitem in question was contraband or that it was found on his person. His challenge to the legal[*2]sufficiency of the evidence is limited to the proof that theitem was dangerous. The evidence offered by the People included, among other things, thetestimony of Race and two other correction officers who had observed the contraband. Althoughthere were some variations in the witnesses' description of the item, they consistently testifiedthat it was a sharpened piece of metal. They also testified about the use of similar items asweapons. Notably, the item itself was placed in evidence and was available for inspection by thejury. Viewing the evidence in the light most favorable to the People (see People v Brown, 46 AD3d949, 951 [2007], lv denied 10 NY3d 808 [2008]), the evidencepresented—even without the testimony comparing the contraband with similaritems—could certainly lead a rational person to conclude that the item was dangerous (see People v Carralero, 9 AD3d790, 791 [2004], lv denied 4 NY3d 742 [2004]). Therefore, the jury's verdict shouldnot be disturbed on this basis (see People v Bleakley, 69 NY2d 490, 495 [1987]).Likewise, viewing the evidence in a neutral light and giving "appropriate deference to the jury'ssuperior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151, 1152-1153 [2007], lvdenied 8 NY3d 946 [2007]; seePeople v Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]), wefind that "the jury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,348 [2007]; see People v Romero, 7NY3d 633, 643-644 [2006]; People v Bleakley, 69 NY2d at 495; People v Khuong Dinh Pham, 31AD3d 962, 964 [2006]).
Defendant's contention that he did not receive meaningful assistance of counsel is similarlyunavailing. Counsel made appropriate pretrial motions, successfully argued to have defendant'sbail reduced, made appropriate evidentiary objections at trial, vigorously cross-examinedwitnesses and convinced the court to include a lesser included charge when instructing the jury.Defendant has failed to demonstrate the absence of strategic or other legitimate explanation forcounsel's introduction of his disciplinary record (see generally People v Carralero, 9AD3d at 792; People v Alston, 298 AD2d 702, 704 [2002], lv denied 99 NY2d554 [2002]). Viewing the totality of the circumstances, we find that the other actions of counselof which defendant complains did not deprive defendant of the meaningful assistance of counsel(see People v Holland, 279 AD2d 645, 647 [2001], lv denied 96 NY2d 801[2001]; People v Young, 271 AD2d 751, 752 [2000], lv denied 95 NY2d 859[2000]).
Defendant's remaining arguments have been considered and are found to be without merit(see People v Malloy, 262 AD2d 798, 799-800 [1999], lv denied 93 NY2d 1022[1999]).
Peters, J.P., Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.