| People v Carter |
| 2011 NY Slip Op 08849 [90 AD3d 1159] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarkCarter, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered September 20, 2010, upon a verdict convicting defendant of the crime of promotingprison contraband in the first degree.
Defendant, while incarcerated in the Elmira Correctional Facility in Chemung County, wasinvolved in an altercation with another inmate after returning from a medical "run." Defendantwas placed up against a wall as correction officers attempted to break up the fight. It was at thattime that correction officer Kirby Bunnell observed that defendant's hand was clenched andordered defendant to "drop it." Defendant opened his hand, whereupon Bunnell saw and heardsomething fall and hit the floor. Bunnell placed his foot on top of the item and, within moments,retrieved a 7 to 7½-inch, sharpened, clear Plexiglas shank. Defendant was indicted andconvicted, after a jury trial, of one count of promoting prison contraband in the first degree.Defendant now appeals and we affirm.
Defendant's sole argument on appeal is that the verdict was against the weight of theevidence. As relevant here, "[a] person is guilty of promoting prison contraband in the firstdegree when . . . he [or she] knowingly and unlawfully . . . possessesany dangerous contraband" (Penal Law § 205.25). Defendant's weight of the evidenceargument centers around the proof that he knowingly possessed the shank. Defendant firstcontends that Bunnell's testimony is [*2]implausible that he didnot notice the shank in defendant's possession while he was returning defendant to his cell orduring the ensuing altercation until defendant was secured against a wall. We disagree. Since theshank—which was received in evidence at trial—was made of clear Plexiglas, thejury was entitled to infer that it was not noticeable prior to or during the fight because it wastransparent and blended in with the background. In addition, considering Bunnell's testimony thatdefendant entered and then immediately exited his cell just prior to the altercation, the jury couldhave inferred that he retrieved the shank at that time.
Nor do we find merit to defendant's contention that certain inconsistencies between Bunnell'strial testimony and the written misbehavior reports that he authored regarding the incident orbetween his testimony and the eyewitness testimony of correction officer Jeremy Taylor were sosignificant as to require that the verdict be set aside; notably, such inconsistencies werehighlighted to the jury (see People vGilliam, 36 AD3d 1151, 1152 [2007], lv denied 8 NY3d 946 [2007]; People v Moore, 17 AD3d 786,789 [2005], lv denied 5 NY3d 785 [2005]). Moreover, Bunnell testified not only toseeing something in defendant's hand after an altercation with another inmate and ordering himto drop it, but also to seeing and hearing something drop to the floor, covering the item with hisboot and recovering the shank from beneath it. Much of Bunnell's testimony was corroborated byTaylor, and defendant presented no conflicting evidence or testimony. Even if a different findingwould not have been unreasonable, viewing the evidence in a neutral light and deferring to thejury's superior position to determine witness credibility, the jury could conclude beyond areasonable doubt that defendant knowingly possessed the shank, and we do not find that the juryfailed to accord the evidence its proper weight (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Romero, 7 NY3d 633,643-644 [2006]; People vBreedlove, 61 AD3d 1120, 1121 [2009], lv denied 12 NY3d 913 [2009]; People v Sidbury, 24 AD3d 880,880-881 [2005], lv denied 6 NY3d 818 [2006]).
Defendant's remaining contentions have been considered and found to be without merit.
Peters, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.