| People v Silcox-Mix |
| 2018 NY Slip Op 01360 [159 AD3d 1060] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew S. Silcox-Mix, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered July 10, 2015, upon a verdict convicting defendant of the crime ofpromoting prison contraband in the first degree.
Defendant, an inmate at a state correctional facility, was charged in a one-count indictmentwith promoting prison contraband in the first degree after a search of his cell led to the discoveryof a realistic replica of a pistol that had been fabricated from prison-issued soap and paper.Following a jury trial, defendant was convicted as charged and sentenced to a prison term of1
Defendant first contends that his conviction is against the weight of the evidence. When adifferent verdict would not have been unreasonable, as here, we must view the evidence in aneutral light and accord deference to the jury's credibility determinations in determining whethereach element of the crime for which defendant was convicted was proven beyond a reasonabledoubt (see People v Williams, 156AD3d 1224, 1225-1226 [2017]). As relevant here, "[a] person is guilty of promoting prisoncontraband in the first degree when . . . [b]eing a person confined in a detentionfacility, he [or she] knowingly and unlawfully makes, obtains or possesses any dangerouscontraband" (Penal Law § 205.25 [2]). It is undisputed that defendant was confinedin a detention facility, that he had fabricated, and was in possession of, the soap [*2]gun that was found when his cell was searched and that the soapgun was contraband.[FN*]Thus, we must consider whether the jury's conclusion that the soap gun was dangerous is againstthe weight of the evidence.
Contraband is dangerous if it "is capable of such use as may endanger the safety or securityof a detention facility or any person therein" (Penal Law § 205.00 [4]). In thatregard, "the test for determining whether an item is dangerous contraband is whether itsparticular characteristics are such that there is a substantial probability that the item will be usedin a manner 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] [emphasis omitted]). Whether an item is dangerous contraband turns on the mannerin which it may be used; notably, Finley imposes no requirement that an item beinherently dangerous to qualify as dangerous contraband (see People v Green, 119 AD3d 23, 26-27, 29 [2014], lvdenied 23 NY3d 1062 [2014]; People v Wilson, 56 AD3d 1266, 1267 [2008], lv denied 12NY3d 763 [2009]).
Defendant fabricated the soap gun from several bars of soap and lined notebook paper, andhe used carbon paper to color the soap gun and make it look as realistic as possible by giving itthe appearance of a black or stainless weapon. Defendant also fabricated two magazine replicasfrom soap, one of which had been completely colored, that could be inserted and removed fromthe handle of the replica pistol. The soap gun and magazines were admitted into evidence and,accordingly, were available for examination by the jury (see e.g. People v Torres, 14 AD3d 801, 803 [2005], lvdenied 4 NY3d 836 [2005]). Two correction officers—each a lieutenant with over 25years of experience—testified that because the soap gun resembled a real weapon, it couldhave been used to facilitate an escape and, further, that any display of the soap gun would likelyhave led to the use of deadly force to protect against the apparent threat posed by the presence ofa gun.
Defendant's primary argument—that even if the soap gun resembled a real weapon, itwas not dangerous because he was unable to remove it from his cell or use it in any dangerous orthreatening manner—is meritless because there is no requirement that contraband beimmediately available for use to be considered dangerous (see People v Rosario, 262AD2d 802, 803 [1999], lv denied 93 NY2d 1026 [1999]). Moreover, the correctionofficers testified that the possibility existed for defendant to remove the soap gun from his cell, orfrom the special housing unit (hereinafter SHU), where defendant was housed for disciplinaryreasons when the gun was located. Inmates in SHU are confined to their cells for 23 hours perday with no access to the general prison population and are searched and placed in restraintsevery time that they are removed from their cells. Defendant testified that he believed that therewas no way he could have removed the soap gun from the SHU. However, the correction officerstestified that items secreted upon the person of an inmate are not always discovered because thesearches that are conducted when a defendant is removed from a cell are not failsafe. They alsotestified that an item of contraband placed among the items of personal property that an inmate ispermitted to take from the SHU upon the inmate's return to regular housing with the generalprison population may not be found because such personal effects are not routinely searched.Thus, we conclude that defendant's conviction is not against the weight of theevidence.
[*3] We reject defendant's contention thathe should have been granted youthful offender status. Defendant was ineligible for youthfuloffender status for the instant conviction because he had previously been adjudicated a youthfuloffender following a felony conviction (see CPL 720.10 [2] [c]). Finally, we find noabuse of discretion or extraordinary circumstances warranting a reduction of the sentence, givendefendant's prior misdemeanor conviction for possessing prison contraband and his admissionthat he intended to create a life-like replica of a gun, notwithstanding his knowledge of thedangers caused by the presence of a gun within a prison (see People v Deleon, 149 AD3d 1273, 1274 [2017], lvdenied 29 NY3d 1077 [2017]).
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant conceded that thesoap gun was contraband by arguing in his brief on appeal that the charge should be reduced topromoting prison contraband in the second degree upon a determination that the soap gun wasnot dangerous.