| People v Hernandez |
| 2013 NY Slip Op 00792 [103 AD3d 433] |
| February 7, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edwin Hernandez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel),for respondent.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered July 26,2010, as amended July 29, 2010, convicting defendant, after a jury trial, of promotingprison contraband in the first degree and criminal possession of a weapon in the thirddegree, and sentencing him, as a second felony offender, to concurrent terms of 2½to 5 years, unanimously modified, as a matter of discretion and in the interest of justice,to the extent of reducing the sentence to a term of 2 to 4 years, and otherwise affirmed.
While defendant was in prison awaiting trial on charges of which he wassubsequently acquitted, a shank was discovered hidden in his cell, during a surprisesearch. Although defendant did not testify, he proffered a defense, throughcross-examination and argument, that the shank did not belong to him, but might havebeen left in the cell by someone else. Over objection, the court admitted evidence on thePeople's direct case that shanks were recovered from defendant's cell in both a pastincident and a subsequent incident.
Defendant argues that the evidence of these uncharged crimes should not have beenadmitted under People v Molineux (168 NY 264 [1901]). This evidence,however, was not received as proof that defendant had a propensity to keep shanks in hiscell. Instead, it was probative of defendant's knowledge and intent in that "knowingpossession" was an element of at least one of the charges on which he was convicted(Penal Law § 205.25 [2]; see e.g. People v Giles, 11 NY3d 495 [2008]; People v Webb, 5 AD3d115 [1st Dept 2004], lv denied 2 NY3d 809 [2004]). Although defendantargues that he did not "possess" the shank (see People v Blair, 90 NY2d 1003[1997]), there was no testimony refuting the fact that the shank was discovered in a celloccupied only by him (see People v Hurd, 161 AD2d 841 [1990]). The contestedissue at trial was whether defendant actually knew the shank was in his cell, directlyimplicating his state of mind (see People v Alvino, 71 NY2d 233 [1987]). Thetrial court correctly held that the probative value of this evidence outweighed itsprejudicial effect, which the court minimized by way of thorough and repeated limitinginstructions.
Defendant's related argument concerning the prosecutor's summation is unpreservedand we decline to review it in the interest of justice. As an alternative holding, we find nobasis for [*2]reversal of the judgment.
The court, however, finds that as a matter of discretion and in the interest of justice,the sentence should be reduced to a term of 2 to 4 years. Concur—Saxe, J.P.,Renwick, Freedman, Román and Gische, JJ.