| People v Killings |
| 2018 NY Slip Op 01752 [159 AD3d 1398] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v TrevonKillings, Appellant. |
Adam H. Vanbuskirk, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina 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 and tampering with physical evidence.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]) andtampering with physical evidence (§ 215.40 [2]). Defendant's conviction arose froman incident that occurred when he was an inmate in a correctional facility, in which he foughtwith another inmate. Defendant was observed making slashing motions toward the other inmate,who sustained a laceration on his cheek. The fight was observed by one correction officer and,when other correction officers arrived to assist, the inmates stopped fighting and assumed aposition to be frisked. No contraband was recovered.
Defendant contends that the conviction of promoting prison contraband in the first degree isnot based on legally sufficient evidence with respect to his identity and his possession of thedangerous contraband. We reject that contention. Viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we concludethat defendant's identity as the inmate who was fighting with another inmate while makingslashing motions and his possession of dangerous contraband is supported by legally sufficientevidence (see People v Hurd, 161 AD2d 841, 842 [3d Dept 1990], lv denied 76NY2d 858 [1990]). The correction officer who witnessed the fight was unable to make anin-court identification of defendant at trial, but he testified that he confirmed defendant'sidentification immediately after the fight by being shown defendant's identification card. Inaddition, other correction officers who arrived at the scene after the fight ended identifieddefendant at trial as one of the two inmates who was frisked and interviewed after the incident.Although no weapon was recovered, the evidence further established that the other inmatesustained a cut to his cheek that required 30 sutures, and there was testimony that the injury wasconsistent with a weapon fashioned from a razor blade, scalpel, can lid, or exacto knife. The jurycould thus infer based on that evidence that defendant possessed dangerous contraband (see People v Blunt, 149 AD3d1573, 1573 [4th Dept 2017], lv denied 29 NY3d 1123 [2017]). We reject defendant'sfurther contention that his conviction of tampering with physical evidence is not based on legallysufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Inaddition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally Bleakley, 69 NY2d at 495).
Contrary to defendant's contention, County Court properly denied his request for a missingwitness charge with respect to the other inmate involved in the fight. Defendant failed to [*2]meet his burden of establishing that the witness would providetestimony that was favorable to the People (see People v Edwards, 14 NY3d 733, 735 [2010]; People v Santos, 151 AD3d 1620,1622 [4th Dept 2017], lv denied 29 NY3d 1133 [2017]). Indeed, in requesting themissing witness charge, defendant asserted that it was anticipated that the inmate "would testifyfavorably for the defense." Finally, we reject defendant's contention that the sentence is undulyharsh and severe. Present—Smith, J.P., Centra, Peradotto, DeJoseph and Curran, JJ.