| People v Davey |
| 2015 NY Slip Op 09514 [134 AD3d 1448] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v David M. Davey, Appellant. (Appeal No.1.) |
Charles A. Marangola, Moravia, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered March 25, 2014. The judgment convicted defendant, upon a jury verdict, ofpromoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convictinghim upon a jury verdict of two counts of promoting prison contraband in the first degree(Penal Law § 205.25 [2]), as charged in separate indictments. Defendant,while an inmate at a correctional facility, was searched in the recreation yard and wasfound to have a folded tin can lid secreted in a glove in his pocket, resulting in a chargeof promoting prison contraband in the first degree in one indictment. Defendant's cellwas then searched, where a correction officer found a second folded tin can lid in a deskdrawer and a metal shank hidden in defendant's mattress, resulting in two charges ofpromoting prison contraband in the first degree in a second indictment. The Peoplepresented the case to two different grand juries, and County Court granted the People'smotion to consolidate the indictments. The jury found defendant not guilty regarding thecan lid found in his cell, but guilty of the remaining counts.
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve for our review his challenge to the legal sufficiency of theevidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). In any event, viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that theevidence is legally sufficient to establish that defendant knowingly possessed dangerouscontraband (Penal Law § 205.25 [2]). Both the folded can lid and the metalshank had characteristics "such that there is a substantial probability that the item[s] willbe used in a manner that is likely to cause death or other serious injury" (People v Finley, 10 NY3d647, 657 [2008]).
Defendant's further contention that the verdict is repugnant is not preserved for ourreview because he did not object to the verdict on that ground before the jury wasdischarged (see People v Satloff, 56 NY2d 745, 746 [1982], rearg denied57 NY2d 674 [1982]; People v Spears, 125 AD3d 1401, 1402 [2015], lvdenied 25 NY3d 1172 [2015]). In any event, that contention is without merit. "[A]conviction will be reversed only in those instances where acquittal on one crime ascharged to the jury is conclusive as to a necessary element of the other crime, as charged,for which the guilty verdict was rendered" (People v Tucker, 55 NY2d 1, 7[1981], rearg denied 55 NY2d 1039 [1982]). "A determination of whether averdict is repugnant is based solely on a review of the trial court's charge regardless of itsaccuracy" (People v Green, 71 NY2d 1006, 1008 [1988]). Here, the court gavethe same charge to the jury on the first two counts of promoting prison contraband in thefirst degree, but stated that the first count was with respect to the folded can lid that wasallegedly found on defendant when he was in the prison yard, and the second count waswith respect to the folded can lid that was allegedly found in the desk located indefendant's cell. Defendant's [*2]acquittal of the onecount was not conclusive of the other count because they were separate items ofdangerous contraband. In addition, viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Although the evidence establishedthat inmates were allowed to possess a folded can lid inside their cells to cut food, theywere not allowed to carry them outside their cells.
Defendant next contends that the court's Sandoval ruling denied him his rightto due process and a fair trial. "By failing to object to the court's ultimateSandoval ruling, defendant failed to preserve that contention for our review" (People v Poole, 79 AD3d1685, 1685 [2010], lv denied 16 NY3d 862 [2011]). In any event, the court'sSandoval ruling does not constitute an abuse of discretion (see People v Smalls, 16 AD3d1154, 1155 [2005], lv denied 5 NY3d 769 [2005]). "The extent to whichprior convictions bear on the issue of a defendant's credibility is a question entrusted tothe sound discretion of the court, reviewable only for clear abuse of discretion"(Poole, 79 AD3d at 1685-1686 [internal quotation marks omitted]). Defendant'sprior convictions for petit larceny, criminal possession of stolen property, and robberywere "acts of individual dishonesty" (People v Sandoval, 34 NY2d 371, 377[1974]), and were particularly relevant to the issue of defendant's credibility (see People v Walker, 66 AD3d1331, 1332 [2009], lv denied 13 NY3d 942 [2010]). Defendant's contentionthat certain convictions were too remote in time is without merit inasmuch as defendantwas incarcerated for much of the time following those convictions (see Smalls,16 AD3d at 1154-1155; seegenerally People v Stevens, 109 AD3d 1204, 1205 [2013], lv denied 23NY3d 1043 [2014]). We conclude that "[t]he record establishes that the court 'weighedappropriate concerns and limited both the number of convictions and the scope ofpermissible cross-examination' " (People v Rogers, 32 AD3d 1221, 1221-1222 [2006], lvdenied 7 NY3d 928 [2006]; see People v Bausano, 122 AD3d 1341, 1341 [2014], lvdenied 25 NY3d 1069 [2015]; Poole, 79 AD3d at 1686).
Contrary to defendant's contention, the court did not err in admitting in evidence thefolded can lid recovered from him in the yard. There were "sufficient assurances of theidentity and unchanged condition of the evidence . . . , and thus any allegedgaps in the chain of custody went to the weight of the evidence, not its admissibility" (People v Kennedy, 78 AD3d1477, 1478 [2010], lv denied 16 NY3d 798 [2011]; see People v Hawkins, 11NY3d 484, 494 [2008]). We further reject defendant's contention that the courtabused its discretion in granting the People's motion to consolidate the indictments (see People v Bankston, 63AD3d 1616, 1616-1617 [2009], lv denied 14 NY3d 885 [2010]; seegenerally People v Lane, 56 NY2d 1, 8 [1982]). Although the offenses are basedupon different criminal transactions, they are the "same or similar in law" (CPL 200.20[2] [c]; see People vCooper, 128 AD3d 1431, 1433 [2015], lv denied 26 NY3d 966 [2015]).Moreover, evidence of defendant's possession of the can lid on his person with respect toone indictment would be admissible at the trial of the second indictment regarding hisknowledge of the can lid in his desk drawer, and the offenses therefore were joinableunder CPL 200.20 (2) (b) (seePeople v Rodriguez, 68 AD3d 1351, 1353 [2009], lv denied 14 NY3d804 [2010]; People v Burroughs, 191 AD2d 956, 956-957 [1993], lvdenied 82 NY2d 715 [1993]). Defendant did not show that he would be prejudicedby the consolidation (see People v Torra, 309 AD2d 1074, 1075 [2003], lvdenied 1 NY3d 581 [2003]; see generally People v Ward, 104 AD3d 1323, 1323[2013], lv denied 21 NY3d 1011 [2013]). He made no showing that he hadimportant testimony to give regarding the charge in one indictment but the need to refrainfrom testifying regarding the charges in the other indictment (see Cooper, 128AD3d at 1433; see generally Lane, 56 NY2d at 9-10). Indeed, the fact that thejury acquitted defendant of one of the charges demonstrates that he was not prejudicedby the consolidation (see Ward, 104 AD3d at 1323-1324; Rodriguez, 68AD3d at 1353).
The court properly denied defendant's request to charge the lesser included offenseof promoting prison contraband in the second degree. Viewing the evidence in the lightmost favorable to defendant (see People v Johnson, 45 NY2d 546, 549 [1978]),we conclude that there is no reasonable view of the evidence that defendant possessedcontraband but not dangerous contraband (see People v Carralero, 9 AD3d 790, 791 [2004], lvdenied 4 NY3d 742 [2004]; see generally People v Glover, 57 NY2d 61, 63[1982]). Finally, the sentence is not unduly harsh or severe. Present—Scudder,P.J., Centra, Carni, Valentino and DeJoseph, JJ.