| People v McPherson |
| 2019 NY Slip Op 01674 [170 AD3d 1255] |
| March 7, 2019 |
| Appellate Division, Third Department |
[*1](March 7, 2019)
| The People of the State of New York,Respondent, v Brendan McPherson, Appellant. |
Norbert A. Higgins, Binghamton, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), forrespondent.
Lynch, J.P. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered February 8, 2016, upon a verdict convicting defendant of the crime of promoting prisoncontraband in the first degree.
Defendant, an inmate at a state correctional facility, was indicted on a charge of promotingprison contraband in the first degree for allegedly possessing a plastic, shank-type weapon duringan altercation with another inmate. Following a jury trial, defendant was convicted as chargedand sentenced, as a second felony offender, to a prison term of 2
Defendant maintains that the evidence was legally insufficient to support the verdict and theverdict was against the weight of the evidence in that the People failed to prove that he possessedthe shank. He further contends that this item, which was a sharpened piece of plastic about seveninches long and one inch wide, did not constitute dangerous contraband. Initially, we note thatdefendant failed to preserve his legal insufficiency argument with respect to the issue ofpossession because his motion for a trial order of dismissal was specifically limited to thedangerous contraband contention (seePeople v Hawkins, 11 NY3d 484, 492 [2008]). That said, we assess defendant'spossession claim under our weight of the evidence review. In that regard, we first look to see if "adifferent verdict would not have been unreasonable" and, if not, as here, we then "view theevidence in a neutral light and accord deference to the jury's credibility determinations indetermining whether each element of the crime for which defendant was convicted was provenbeyond a reasonable doubt" (People vSilcox-Mix, 159 AD3d 1060, 1060 [2018]).
The relevant question is whether defendant possessed dangerous contraband. By definition,"contraband" is any item an inmate is prohibited from possessing and "dangerous contraband" is"contraband which is capable of such use as may endanger the safety or security of a detentionfacility or any person therein" (Penal Law § 205.00 [4]). "[T]he test for determiningwhether an item is dangerous contraband is whether its particular characteristics are such thatthere is a substantial probability that the item will be used in a manner that is likely to causedeath or other serious injury, to facilitate an escape, or to bring about other major threats to adetention facility's institutional safety or security" (People v Finley, 10 NY3d 647, 657 [2008] [emphasisomitted]).
At trial, the People called two correction officers, Scott Perry and Jeffrey Wood, who bothobserved and participated in breaking up an altercation between defendant and another inmate,Carlos Jean-Baptiste. According to Wood, defendant initiated the altercation. Wood observed "anunknown white object in [defendant's] hand" and saw defendant "stabbing" Jean-Baptiste. Afterpulling Jean-Baptiste away, Wood observed "a white object on the floor." For his part, Perryobserved defendant "making a stabbing-type motion" towards Jean-Baptiste with a "whiteobject." As Perry pulled defendant to the ground, defendant dropped the item, which ended up"underneath him." Perry described the item as a broken off toilet brush handle sharpened to apoint, with a sheath made of cellophane wrap. In contrast, defendant testified that he observedbut was not involved in the altercation, an assertion backed up by Jean-Baptiste, who testifiedthat he was fighting with another inmate and had never seen the shank before.
With due deference to the jury's credibility assessment, we find that the jury could readilyconclude that defendant possessed the shank and that the verdict as to possession is not againstthe weight of the evidence. As to the characterization of the shank as "dangerous contraband," wefind that the verdict is supported by legally sufficient evidence and accords with the weight of theevidence. Although the record shows that Jean-Baptiste only sustained two superficial cuts on hishead and face during the altercation, the characteristics of the shank that was placed in evidencefor the jury to see were such that it could readily be used to cause serious injury or death toanother inmate.
We find defendant's claim of ineffective assistance of counsel unavailing. A decision not tofacilitate a defendant's appearance before a grand jury does not equate to ineffective assistance(see People v Simmons, 10 NY3d946, 949 [2008]). Nor has defendant demonstrated that the outcome would have beendifferent had he and/or Jean-Baptiste testified before the grand jury (see id.; People v Zayas-Torres, 143 AD3d1176, 1177-1178 [2016], lv denied 30 NY3d 984 [2017]). The decision bydefendant's counsel not to pursue DNA testing on the shank also falls within the realm of trialstrategy given the People's failure to present DNA evidence, coupled with the direct testimony ofthe two correction officers noted above. Further, although defendant complains that counselfailed to adequately prepare Jean-Baptiste as a witness, Jean-Baptiste corroborated defendant'stestimony that defendant was not involved in the altercation.
In his pro se brief, defendant maintains that the People failed to disclose pertinentRosario material consisting of a statement made by Wood during defendant's prisondisciplinary proceeding. Specifically, defendant maintains that Wood testified that he had notseen "anything in [defendant's] hand or a weapon" in contravention of his trial testimony. Thisclaim was first advanced by defendant during a postverdict hearing in February 2015, at whichtime defendant requested a copy of the hearing tape. In a follow-up appearance on March 23,2015, the People responded that they had never received a copy of the hearing transcript, but theninquired of defendant's counsel whether the People had provided him with "a copy of the tape."Learning that defendant's counsel did not have the tape, the prosecutor then advised, "I can makea copy." The issue was addressed again on April 20, 2015, when the prosecutor again advised,"I'll make a copy." The copy was finally provided to defendant's counsel the next day.
Although the People are not under an obligation to obtain witness statements made during aprison disciplinary hearing (see People v Howard, 87 NY2d 940, 941 [1996]; People v Lewis, 167 AD3d 158,161 [2018]), if such material is in the People's possession, an obligation to disclose arises(see CPL 240.45 [1] [a]; Peoplev Smith, 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]; People v Duran, 6 AD3d 809, 811[2004], lv denied 3 NY3d 639 [2004]). The difficulty here is that the record does notshow when the People obtained the hearing tape and the actual content of that tape.Consequently, we conclude that defendant's pro se claim is more properly the subject of a CPLarticle 440 motion (see People v Jackson, 78 NY2d 638, 645-646 [1991]; People v Greenfield, 167 AD3d1060, 1063 [2018]).
Clark, Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed.