| People v Perry |
| 2009 NY Slip Op 07882 [67 AD3d 1046] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KareemPerry, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered January 3, 2008, upon a verdict convicting defendant of the crime of promoting prisoncontraband in the first degree.
After receiving an anonymous letter, correction officers searched defendant's cell at theElmira Correctional Facility in Chemung County and discovered two razor blades tied togetherwith a string hidden in a box located in the window ledge containing letters to defendant. He wasindicted, tried and convicted of promoting prison contraband in the first degree and sentenced, asa second felony offender, to a term of 2½ to 5 years in prison, to run consecutively with thesentence he was serving. Defendant appeals and, given that none of his claims is meritorious, weaffirm.
We find no merit to defendant's challenges to the jury instructions. Defendant initiallycontends that County Court erred in declining his request to charge the jury to determine whetherhe had temporarily and lawfully possessed the contraband (see e.g. People v Williams,50 NY2d 1043, 1045 [1980]; People v LaPella, 272 NY 81, 82 [1936]). The request waspremised upon defendant's testimony that two months after being transferred to his cell, he foundthe razor blades while cleaning his cell. Since he was having problems with other inmates, heallegedly [*2]sent an anonymous letter to the DeputySuperintendent indicating where the blades could be found in order to make it appear as if hewere in illegal possession of contraband so he would be placed in the special housing unit.
Defendant, however, was charged with promoting prison contraband in the first degree forknowingly and unlawfully possessing dangerous contraband (see Penal Law §205.25 [2]; § 205.00 [4]), and this Court has specifically ruled that the defense oftemporary lawful possession only applies to certain crimes under the Penal Law, includingweapons possession, and does not apply to promoting prison contraband (see People vLegree, 176 AD2d 983, 983-984 [1991], lv denied 80 NY2d 834 [1992]; seealso Penal Law § 265.20). Given the threat posed by dangerous contraband, such asweapons, to a prison facility's safety and security (see People v Finley, 10 NY3d 647, 656-657 [2008]; People v Torres, 14 AD3d 801,803 [2005], lv denied 4 NY3d 836 [2005]; People v Anderson, 299 AD2d 578,579 [2002], lv denied 99 NY2d 580 [2003]; see also Penal Law § 205.00[4]), even temporary possession is proscribed. The Legislature has not seen fit to recognize atemporary and lawful possession defense in the promoting prison contraband context(see Penal Law art 205; compare Penal Law § 265.20), and we declinedefendant's request to do so. In any event, defendant's testimony that he continued to possess theblades for several days after discovering them in his cell under a plan to be caught by correctionofficers during a cell search, even if credited, could not establish either that his possession was"temporary" or that it was "lawful" (see People v Williams, 50 NY2d at 1045; seealso People v Almodovar, 62 NY2d 126, 130 [1984]; People v Rodriguez, 292AD2d 646, 646-647 [2002], lv denied 98 NY2d 654 [2002]; cf. People v LaPella,272 NY at 82).
Likewise, we find no error in County Court's denial of defendant's request to charge the juryto determine whether his possession of the blades was "voluntary." The jury was correctlycharged regarding the mens rea of the crime of promoting prison contraband, that defendantacted "knowingly," and that he did so unlawfully (see CJI2d [NY] Penal Law §205.25 [1]; see also Penal Law § 15.05 [2]). While defendant is correct thatinvoluntary acts may be excluded from liability (see Penal Law § 15.10), a"voluntary act"—the actus rea of possession—by definition includes "the possessionof property if the actor was aware of his physical possession or control thereof for a sufficientperiod to have been able to terminate it" (Penal Law § 15.00 [2]; see Donnino,Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.00, at84). Thus, defendant's knowing possession was the voluntary act to be proven. Defendant's owntestimony established his knowing, protracted possession and created no factual issue regardinginvoluntariness so as to entitle him to a jury charge in that regard.
Finally, upon review of defendant's criminal history, finding neither an abuse of discretionnor extraordinary circumstance warranting a reduction of defendant's sentence, which was lessthan the maximum, we decline to reduce it in the interest of justice (see People vDelgado, 80 NY2d 780, 783 [1992]).
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.