| People v Gagnier |
| 2017 NY Slip Op 00045 [146 AD3d 1019] |
| January 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark Gagnier Sr., Appellant. |
Richard E. Cantwell, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered November 20, 2013, upon a verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree, criminal possession of acontrolled substance in the fifth degree, promoting prison contraband in the first degreeand conspiracy in the fourth degree.
On November 25, 2012, defendant, who was 53 years old, visited with a 20-year-oldfemale inmate at the Clinton County Jail. The visitation room was under the supervisionof Alyssa Harkness, a correction officer who had processed the inmate's intake two daysearlier and learned that the inmate was undergoing withdrawal symptoms from the use ofheroin. At the end of the 10 minute visit, Harkness observed defendant kiss the inmate onthe mouth while looking directly at Harkness. Suspecting that contraband had passedbetween the two, Harkness requested that the inmate open her mouth. The inmatecomplied and Harkness fished out a packet of what was, without dispute, heroin. Basedon this incident, defendant was charged in a four-count indictment with criminal sale of acontrolled substance in the third degree, criminal possession of a controlled substance inthe fifth degree, conspiracy in the fourth degree and promoting prison contraband in thefirst degree. After a jury trial, defendant was convicted as charged and thereaftersentenced to an aggregate prison term of six years, with two years of postreleasesupervision. Defendant appeals.
We affirm. Defendant maintains that the verdict is both legally insufficient andagainst the weight of the evidence, contending that the proof failed to establish that heever possessed the heroin relative to the sale, possession and conspiracy charges, and thatno showing was made that [*2]heroin constitutes"dangerous contraband." Where the legal sufficiency of a verdict is challenged, we viewthe evidence in a light most favorable to the People and assess whether "there is a validline of reasoning and permissible inferences from which a rational jury could have foundthe elements of the crime proved beyond a reasonable doubt" (People v Reed, 22 NY3d530, 534 [2014] [internal quotation marks and citations omitted]). For a weight ofevidence review, when, as here, "a different finding would not have been unreasonable,. . . [we] must, like the trier of fact below, weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]).
To support a conviction for criminal sale of a controlled substance in the thirddegree, the People were required to prove that defendant "knowingly and unlawfully"sold "a narcotic drug," such as heroin (Penal Law § 220.39 [1]). A sale isdefined as "to sell, exchange, give or dispose of to another, or to offer or agree to do thesame" (Penal Law § 220.00 [1]). A conviction for criminal possession of acontrolled substance in the fifth degree required the People to prove that defendant"knowingly and unlawfully" possessed "a controlled substance with intent to sell it"(Penal Law § 220.06 [1]). For the conspiracy charge, the People wererequired to demonstrate that, "with intent that conduct constituting . . . aclass B or class C felony be performed, [defendant] agree[d] with one or more persons toengage in or cause the performance of such conduct" (Penal Law § 105.10[1]). A person may be convicted of conspiracy so long as an overt act is alleged andshown to have been committed by one of the conspirators in furtherance of a conspiracy(see Penal Law § 105.20; People v Cochran, 140 AD3d 1198, 1199 [2016], lvdenied 28 NY3d 970 [2016]). Finally, the promoting prison contraband chargerequired the People to demonstrate that defendant "knowingly and unlawfully[introduced] any dangerous contraband into [the] detention facility" (Penal Law§ 205.25 [1]).
The record shows that while the inmate was searched at intake, neither she nordefendant were searched prior to the visitation. Harkness testified that she observed theentire visitation, noting that there was no physical contact between defendant and theinmate at the start of the visit and that defendant was continually watching Harknessthroughout. At the end of the visit, Harkness explained that they both stood up, huggedand then defendant "opened his mouth and covered [the inmate's] mouth." At this pointHarkness intervened and obtained the heroin packet from the inmate. Harkness and twoother correction officers testified that heroin is generally considered to be dangerouscontraband in prison, and the two officers added that they had never heard of an inmateattempting to pass heroin out of a prison during their extended years of service. Theinmate testified that she was sick from withdrawal symptoms and confirmed that shewould have used any heroin she obtained to alleviate her sickness. She explained that shehad briefly known defendant, had never had a physical relationship with him and that,during the visit, defendant told her that he would pass the drugs through a parting kiss.For his part, defendant testified that the inmate attempted to pass the heroin packet tohim, without forewarning, during an unplanned kiss.
Viewed in a light most favorable to the People, the jury could readily conclude that itwas defendant who passed the heroin packet to the inmate, as discussed during their visit,and not the other way around. As such, we find the evidence legally sufficient to supportthe sale, possession and conspiracy convictions. Considering the inmate's withdrawalillness, we also find legally sufficient evidence for the jury to reasonably conclude thatthe heroin packet constituted "dangerous contraband" (Penal Law§§ 205.00 [4]; 205.25 [2]; see People v Verley, 121 AD3d 1300, 1301 [2014], lvdenied 24 NY3d 1221 [2015]). With due deference to the jury's assessment ofwitness credibility, we further conclude that the verdict is not against the weight of [*3]the evidence. Finally, given the absence of a request,defendant failed to preserve his argument that County Court erred in not giving acircumstantial evidence charge to the jury (see People v Davis, 133 AD3d 911, 914 [2015]). In anyevent, where, as here, there is both direct and circumstantial evidence of a defendant'sguilt, such a charge is not required (see People v Hull, 125 AD3d 1099, 1101 [2015],affd 27 NY3d 1056 [2016]).
Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.