| People v Cash |
| 2012 NY Slip Op 03483 [95 AD3d 1374] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vNelson S. Cash, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Christopher D. Grace of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Lehmann, J.),rendered February 25, 2011, upon a verdict convicting defendant of the crimes of promotingprison contraband in the first degree and tampering with physical evidence.
In February 2010, while he was incarcerated, defendant was searched by correction officerCharles Lawrence following a visit with a family member and a friend. After Lawrencequestioned defendant about a lump in defendant's sock, defendant threw the item in the garbagecan. Lawrence then recovered a disposable Bic lighter from the garbage can. As a result,defendant was charged with promoting prison contraband in the first degree and tampering withphysical evidence and was ultimately found guilty as charged after a jury trial. Defendant nowappeals.
We affirm. Defendant contends that his conviction of promoting prison contraband in thefirst degree is based on legally insufficient evidence because there was no evidence that therecovered lighter was operable and, therefore, dangerous. A person is guilty of promoting prisoncontraband in the first degree when he or she is confined to a detention facility and "knowinglyand unlawfully makes, obtains or possesses any dangerous contraband" (Penal Law §205.25 [2]). Whether an item constitutes dangerous contraband is determined by analyzing"whether its [*2]particular characteristics are such that there is asubstantial probability that the item will be used in a manner that is likely to cause death or otherserious injury, to facilitate an escape, or to bring about other major threats to a detention facility'sinstitutional safety or security" (People vFinley, 10 NY3d 647, 657 [2008]; see Penal Law § 205.00 [4]).
Here, Lawrence testified that he recovered a disposable lighter from the garbage can intowhich defendant had thrown the "lump" that Lawrence had observed in defendant's sock. Thelighter was admitted into evidence at trial without objection. Kevin Moore, a supervisingcorrection officer, testified that inmates are not permitted to have lighters in their possession, asany incendiary device that "can be lit or create heat" is considered to be dangerous inside adetention facility because such items create a risk of fire, which is a threat to the facility, and canbe a source of heat for drug use and used as a way to melt plastic to create weapons.Significantly, even defendant acknowledged that lighters are dangerous.
Although Lawrence did not attempt to ignite the lighter during his testimony and did nottestify that he had done so after he had recovered it from the garbage can, defendant's admissionthat a lighter is dangerous alone may be legally sufficient to establish his guilt (see e.g. People v Brown, 75 AD3d655, 656 [2010]; People vCarralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]). Even if thiswere not the case, the lighter was admitted into evidence and was available for the jury toinspect. Moreover, the danger posed to the facility was apparent given the nature of the item andcould be gleaned from the correction officers' testimony (see People v Aponte, 60 AD3d 1199, 1200 [2009]). Thus, the jurycould infer from the evidence and testimony presented that the lighter was dangerous (seegenerally id.). Viewing the evidence in the light most favorable to the People, we thereforefind that the evidence was legally sufficient to convict defendant (see People v Bleakley,69 NY2d 490, 495 [1987]; People vBaltes, 75 AD3d 656, 658 [2010], lv denied 15 NY3d 918 [2010]; People v Somerville, 72 AD3d1285, 1286 [2010]).
Defendant's remaining contentions have been considered and are unavailing.
Peters, P.J., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.