| People v Ariosa |
| 2012 NY Slip Op 08182 [100 AD3d 1264] |
| November 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlfredoAriosa, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered November 23, 2010, upon a verdict convicting defendant of thecrimes of promoting prison contraband in the first degree and conspiracy in the fifth degree (twocounts).
In June 2010, defendant was indicted and charged with various crimes relating to thesmuggling of 29 grams of marihuana—concealed in Clancy's potato chip bags—intoGreat Meadow Correctional Facility in Warren County, where he was incarcerated. Following ajury trial, defendant was convicted of promoting prison contraband in the first degree andconspiracy in the fifth degree (two counts) and was sentenced, as a second felony offender, to anaggregate prison term of 3 to 6 years—said sentence to be served consecutively to hisexisting term of imprisonment. Defendant now appeals.
We affirm. Defendant initially contends that the verdict is not supported by legally sufficientevidence because the People failed to prove that 29 grams of marihuana constitutes "dangerouscontraband" within the meaning of Penal Law § 205.25 (1). Although defendant'sargument on this point was properly preserved for our review (see People v Camerena, 42 AD3d814, 815 [2007], lv denied 9 NY3d 921 [2007]), we find it to be lacking in merit.
A person is guilty of promoting prison contraband in the first degree when, insofar as isrelevant here, he or she "knowingly and unlawfully introduces any dangerous contraband into a[*2]detention facility" (Penal Law § 205.25 [1]).Dangerous contraband, in turn, is defined as "contraband which is capable of such use as mayendanger the safety or security of a detention facility or any person therein" (Penal Law §205.00 [4]; see People v Machuca,45 AD3d 1043, 1044 [2007], lv denied 10 NY3d 813 [2008]). "[T]he test fordetermining whether an item is dangerous contraband is whether its particularcharacteristics are such that there is a substantial probability that the item will be used in amanner that is likely to cause death or other serious injury, to facilitate an escape, or to bringabout other major threats to a detention facility's institutional safety or security" (People v Finley, 10 NY3d 647,657 [2008]; accord People vCooper, 67 AD3d 1254, 1256 [2009], lv denied 14 NY3d 799 [2010]).
Despite defendant's protestations to the contrary, there is ample evidence to support a findingthat the 29 grams of marihuana, which was sent to another inmate at the prison by defendant'swife,[FN1]constituted dangerous contraband. While the Court of Appeals indeed has held that "smallamounts of marihuana" will not qualify as dangerous contraband (People v Finley, 10NY3d at 658; see Penal Law § 221.05 [possession of less than 25 grams ofmarihuana constitutes a noncriminal violation]),[FN2]it also expressly "left open the question of whether . . . quantities of marihuana [greater than 25grams] could be deemed dangerous contraband" (People v Cooper, 67 AD3d at 1256).
Here, the quantity of marihuana at issue would have constituted a class B misdemeanorpossession offense (see Penal Law § 221.10 [2]). Additionally, a review ofdefendant's phone records, actual telephone calls and inmate account, together with anexamination of facility disbursement records, revealed that defendant's wife received a number ofdisbursements from various inmates at the facility—to whom she had no discernibleconnection—and that she, in turn, deposited funds in excess of $10,000 into defendant'sinmate account. Further, the trial testimony established that drug trafficking in prisons often iscontrolled by groups that are willing to resort to violence in order to get paid, leads to dangerousconfrontations between fellow inmates—or between inmates and facility staff—and"creates an undercurrent [of violence and retaliation] [with]in [a] facility that cannot bemonitored." Such proof, in our view, demonstrates the existence of a well-organized scheme tointroduce a misdemeanor quantity of marihuana into a maximum security facility with the intentto distribute such marihuana to other inmates and "reveal[s] a substantial probability that the[marihuana would] be used in a manner likely to cause . . . serious injury or bringabout other major threats to [Great Meadow's] institutional safety or security" (People vCooper, 67 AD3d at 1256-1257). Accordingly, we find that the verdict is supported bylegally sufficient evidence.
As for defendant's ineffective assistance of counsel claim, defendant concedes—andthe [*3]record reflects—that trial counsel made timelypretrial motions, presented cogent opening and closing statements, registered appropriateobjections during the course of the trial, effectively cross-examined the People's witnesses, waswell-versed in the applicable law and achieved an acquittal upon one of the counts in theindictment. Defendant nonetheless finds fault with counsel's performance, arguing that counselwas deficient in failing to request funding for an expert witness to contest the handling andweighing of the marihuana seized and failing to request a charge for a lesser included offense.
"It is well settled that the failure to call a particular witness does not necessarily amount toineffective assistance of counsel" (People v Muller, 57 AD3d 1113, 1114 [2008], lv denied 12NY3d 761 [2009] [citations omitted]; accord People v Auleta, 82 AD3d 1417, 1419 [2011], lvdenied 17 NY3d 813 [2011])—particularly where, as here, trial counsel extensivelyquestioned the relevant witnesses as to the manner in which the marihuana at issue was storedprior to weighing, the circumstances under which it was weighed and the procedures followedwith respect thereto. Additionally, "[t]he failure to request submission of a lesser included chargeto the jury precludes appellate review, unless such failure deprived defendant of a fair trial" (People v Fulwood, 86 AD3d 809,811 [2011], lv denied 17 NY3d 952 [2011] [internal quotation marks and citationomitted]). Defendant made no such showing here and, further, "has not demonstrated that thefailure to request [such a] charge was other than an acceptable 'all-or-nothing' defense strategy"(People v Guarino, 298 AD2d 937, 938 [2002], lv denied 98 NY2d 768 [2002];see People v Wicks, 73 AD3d1233, 1236 [2010], lv denied 15 NY3d 857 [2010]; People v Clark, 115AD2d 860, 862 [1985], lv denied 67 NY2d 941 [1986]). Accordingly, reviewing trialcounsel's representation in its entirety, we are satisfied that defendant received the effectiveassistance of counsel (see People vMcRobbie, 97 AD3d 970, 972 [2012]; People v Wiltshire, 96 AD3d 1227, 1230 [2012]; People v Buchanan, 95 AD3d1433, 1436-1437 [2012]).
Finally, defendant's claim that the two counts of the indictment charging him with conspiracyin the fifth degree are multiplicitous is unpreserved for our review, and we decline defendant'sinvitation to take corrective action in the interest of justice (see People v Thompson, 34 AD3d 931, 932 [2006], lvdenied 7 NY3d 929 [2006]). Defendant's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Peters, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Because inmates are limited asto the number of packages they may receive from friends and family each year, the inmate towhom the package was addressed testified that he agreed to allow defendant to use his packageallowance in exchange for food and cigarettes.
Footnote 2: The quantity of marihuana atissue in both People v Finley (10 NY3d at 652 [three joints]) and the companion case ofPeople v Salters (10 NY3d 647, 650 [2008] [9.3 grams]) was substantially less than 25grams.