| People v Jackson |
| 2018 NY Slip Op 01720 [159 AD3d 1372] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Darnell Jackson, Appellant. |
Adam H. Vanbuskirk, Auburn, for defendant-appellant.
Darnell Jackson, defendant-appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Jesse M. Eshkol of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedJanuary 12, 2016. The judgment convicted defendant, upon a jury verdict, of promoting prisoncontraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of promotingprison contraband in the first degree (Penal Law § 205.25 [2]), defendant contendsthat the evidence is legally insufficient to establish that the item he was charged with possessing,i.e., a small, sharpened piece of metal in a pen cap, constitutes dangerous contraband within themeaning of Penal Law § 205.00 (4). Defendant failed, however, to preserve thatcontention for our review inasmuch as his motion for a trial order of dismissal was not" 'specifically directed' " at that alleged deficiency in the People's evidence(People v Gray, 86 NY2d 10, 19 [1995]; see People v Womack, 151 AD3d 1852, 1852-1853 [4th Dept2017], lv denied 29 NY3d 1135 [2017]). Viewing the evidence in light of the elements ofthe crime as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contentionthat the verdict, insofar as it rests upon the jury's implicit finding that the item at issue constituteddangerous contraband, is against the weight of the evidence (see People v Hood, 145 AD3d 1565, 1565-1566 [4th Dept2016]).
Defendant failed to preserve for our review his contention that County Court improperlypenalized him for exercising his right to a jury trial when it imposed a sentence greater than thatoffered during plea negotiations (seePeople v Coapman, 90 AD3d 1681, 1683-1684 [4th Dept 2011], lv denied 18NY3d 956 [2012]). In any event, that contention lacks merit (see People v Dorn, 71 AD3d 1523, 1524 [4th Dept 2010]).Furthermore, the sentence imposed is not unduly harsh or severe.
Defendant's remaining contentions are raised in his pro se supplemental brief. Defendantfailed to preserve for our review the contentions that the jury was tainted when an individualjuror viewed defendant in shackles outside the courtroom (see People v McCummings,195 AD2d 880, 881 [3d Dept 1993]; People v Soltis, 137 AD2d 732, 733 [2d Dept 1988],lv denied 71 NY2d 1033 [1988]), and that he was denied due process because he stoodtrial in prison garb (see People vMcNitt, 96 AD3d 1641, 1641 [4th Dept 2012], lv denied 19 NY3d 998 [2012];see also People v Cruz, 14 AD3d730, 732 [3d Dept 2005], lv denied 4 NY3d 852 [2005]). We decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We reject defendant's further contention that defense counsel wasineffective in failing to move for a mistrial based upon the juror's observation of defendant inshackles, "[i]nasmuch as a motion for a mistrial would have had 'little or no chance ofsuccess' " (People vAlexander, 109 AD3d 1083, 1085 [4th Dept 2013]). Finally, contrary to defendant'scontention, we conclude that defense counsel's failure to object to defendant's appearance inprison garb did not constitute ineffective assistance of counsel (see People v Jefferson, 58 AD3d753, 753 [2d Dept 2009], lv denied 12 NY3d 784 [2009]; People v Marshall, 2 AD3d 1157,1158 [3d Dept 2003], lv denied 2 NY3d 743 [2004]). Present—Whalen, P.J.,Smith, Lindley, DeJoseph and Curran, JJ.