| People v Andrade |
| 2019 NY Slip Op 03704 [172 AD3d 1547] |
| May 9, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christian Andrade, Also Known as Christopher Ruiz,Appellant. |
Mark Diamond, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Clinton County (Bruno, J.),rendered July 31, 2017, upon a verdict convicting defendant of the crimes of criminal possessionof a weapon in the third degree and promoting prison contraband in the first degree.
Defendant, an inmate at Clinton Correctional Facility, was charged by indictment withcriminal possession of a weapon in the third degree and promoting prison contraband in the firstdegree stemming from defendant leaving his cell with a two-foot long piece of wood, which heput under his shirt in the waistband of his pants. After a Huntley hearing, County Courtdenied defendant's motion to suppress an oral statement he made to a correction officer at thattime. Following a jury trial, defendant was convicted as charged and sentenced, as a secondfelony offender, to a prison term of 2
Defendant challenges the legal sufficiency of the evidence and also contends that the verdictwas contrary to the weight of the evidence. "When reviewing a legal sufficiency claim, we mustdetermine whether the evidence, viewed in the light most favorable to the People, could lead arational trier of fact to conclude that each and every element of the charged crime[s] [has] beenproven beyond a reasonable doubt" (People v Shamsuddin, 167 AD3d 1334, 1334 [2018] [internalquotations marks and citations omitted], lv denied 33 NY3d 953 [2019]; see People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant'slegal sufficiency challenge is only preserved as to his conviction for criminal possession of aweapon in the third degree because he did not set forth any arguments regarding promotingprison contraband in the first degree in his motion for a trial order of dismissal (see People v Crippen, 156 AD3d946, 950 [2017]); however, "[w]e will nevertheless evaluate whether the elements of thecharged crimes were proven beyond a reasonable doubt upon our weight of the evidence review"(People v Vickers, 168 AD3d1268, 1269 [2019]; see People v Crippen, 156 AD3d at 950). "A weight of theevidence review requires us first to decide whether, based on all the credible evidence, a differentfinding would not have been unreasonable, and then, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony" (People v Nunes, 168 AD3d 1187, 1188 [2019]; see People vBleakley, 69 NY2d at 495).
As relevant here, a person is guilty of criminal possession of a weapon in the third degreewhen "[s]uch person commits the crime of criminal possession of a weapon in the fourth degree. . . and has been previously convicted of any crime" (Penal Law§ 265.02 [1]). A person is guilty of criminal possession of a weapon in the fourthdegree when "[h]e or she possesses . . . [a] dangerous or deadly instrument orweapon with intent to use the same unlawfully against another" (Penal Law§ 265.01 [2]). A person is guilty of promoting prison contraband in the first degreewhen, "[b]eing a person confined in a detention facility, he [or she] knowingly and unlawfullymakes, obtains or possesses any dangerous contraband" (Penal Law § 205.25 [2]).Contraband is defined as "any article or thing which a person confined in a detention facility isprohibited from obtaining or possessing by statute, rule, regulation or order" (Penal Law§ 205.00 [3]), whereas dangerous contraband is defined as "contraband which iscapable of such use as may endanger the safety or security of a detention facility or any persontherein" (Penal Law § 205.00 [4]).
At trial, Benjamin Darrah, a correction officer with the Department of Corrections andCommunity Supervision (hereinafter DOCCS), testified that on the day of the incident, he wasworking as a yard officer at Clinton Correctional Facility, which entailed conducting random patfrisks as inmates went out to the yard. After defendant was randomly selected for a pat frisk byanother correction officer, defendant walked toward the frisking area where Darrah was locatedand Darrah observed that defendant was walking with an odd gait. When defendant reachedDarrah, Darrah asked him why he was walking like that, and defendant told him that he had anobject "shoved down the front side of [the] waistband of his pants." Darrah asked defendant whatthe object was, and defendant stated that it was a dough roller, and when Darrah asked defendantwhy he was carrying it, defendant told him it was for protection. Darrah conducted the pat friskand recovered the object, which he described as an "approximately two-foot-long piece ofclub—or piece of wood [that] looked like a club."[FN1]
Darrah explained to the jury DOCCS rules and regulations regarding contraband anddangerous contraband and gave examples of each. Darrah stated that he considers the objectfound on defendant to be dangerous contraband because it posed a security risk to the individualswithin the facility. Darrah testified that the piece of wood would not be allowed in any area of thefacility, and that if he came across that object or something like it in a cell, he would confiscateit. Darrah admitted that his treatment of the object might be different than that of anothercorrection officer. Darrah also explained that Clinton Correctional Facility is a cooking facilitythat allows inmates to go out to the prison yard and cook on wood stoves. Darrah testified thatinmates are allowed to bring cooking implements out to the yard, but that an object is notconsidered a cooking implement if an inmate can make a weapon out of it. He also explained thatcooking implements cannot be brought back and forth, so once something is in the yard, it has tostay there. Darrah also explained that, if an inmate brought an object into the yard, it had to becarried in the inmate's hands or in a see-through net bag. When asked whether rolling pins werecommon to have in the facility, Darrah said they were not, and that he had never seen an inmatewith one.
Justin St. Louis, a sergeant with DOCCS, testified at trial that he came into contact withdefendant when Darrah reported to him that defendant was attempting to bring dangerouscontraband out to the yard. St. Louis stated that the object that defendant possessed wasapproximately 22
Defendant also testified and admitted to possessing the object, which he described as a"rolling pin" or "dough roller." Defendant explained that, on the day of the incident, he plannedto go to the yard to make a pizza with another inmate. Defendant explained that he was in his celland had fallen asleep when he heard his cell door opening, which meant that it was time to go tothe yard. Defendant testified that he grabbed a sweater and scrambled to the door, only realizingas his cell door was closing that he forgot the rolling pin. Defendant was able to reach throughthe bars of his cell to get the rolling pin, but could not reach his net bag. Defendant explainedthat he put the rolling pin under his shirt because he did not want to get sent back to his cell dueto not having the rolling pin in his net bag, which he knew was required for any items that weregoing to be brought outside into the yard. Defendant also testified that, when he was randomlyselected for a pat frisk, he made it clear to the correction officers around him that he had therolling pin. Defendant testified that he removed it from his shirt and gave it to the correctionofficers. Defendant testified that he did not tell Darrah or anyone else that the rolling pin was aweapon or that he intended to use it for protection. Defendant also testified that, prior to thisincident, he had brought the rolling pin into the yard approximately 20 to 30 times without issue.Defendant also stated that the rolling pin was visible from his cell and that he never tried to hideit, even when his cell was searched.
First, there can be no dispute that defendant knowingly possessed the object, as he admittedto said possession, and also admitted that he knew he was not supposed to have the objectwithout carrying it in a net bag. Therefore, our analysis turns on whether there was legallysufficient evidence that the object was a "dangerous or deadly instrument or weapon" andwhether defendant had the "intent to use the same unlawfully against another" (Penal Law§ 265.01 [2]). Darrah testified that the nearly two-foot-long piece of wood isconsidered dangerous contraband. Both Darrah and St. Louis testified that, even if used as arolling pin, it could still be used as a weapon. Darrah also testified that defendant told him that hehad the object on him for protection. Moreover, as the object was "admitted into evidence andwas available for the jury to inspect . . . , the jury could infer from the evidence andtestimony presented" that the object was dangerous and, therefore, there was legally sufficientevidence to support the conviction for criminal possession of a weapon in the third degree (People v Cash, 95 AD3d 1374,1375-1376 [2012], lv denied 19 NY3d 958 [2012]; see Penal Law§§ 205.25 [2]; 265.02 [1]; People v Gagnier, 146 AD3d 1019, 1021-1022 [2017], lvdenied 29 NY3d 1079 [2017]; People v Aponte, 60 AD3d 1199, 1200 [2009]). As to the weight ofthe evidence, a different verdict would not have been unreasonable as the jury could havecredited defendant's version of events over Darrah's and St. Louis' versions (see People v Martinez, 166 AD3d1292, 1294-1295 [2018], lv denied 32 NY3d 1207 [2019]). However, viewing theevidence in a neutral light and according due deference to the credibility determinations of thejury, we find that the verdict as to both convictions is in accord with the weight of the evidence(see People v Chaneyfield, 157AD3d 996, 1000 [2018], lv denied 31 NY3d 1012 [2018]; People v Gagnier,146 AD3d at 1022).
We are similarly unpersuaded by defendant's contention that County Court erred in denyinghis motion to suppress the statement he made to Darrah during the pat frisk. As relevant here,"[i]n a correctional facility, Miranda warnings are necessary where the circumstances ofthe detention and interrogation entail added constraint that would lead a prison inmate reasonablyto believe that there has been a restriction on that person's freedom over and above that ofordinary confinement in a correctional facility. A Miranda warning is not necessary for arelatively brief, generally public, or otherwise on-the-scene investigatory detentions that aretypically not custodial" (People vDavis, 167 AD3d 1330, 1330 [2018] [internal quotation marks and citations omitted];see People v Alls, 83 NY2d 94, 100 [1993]; People v Decker, 159 AD3d 1190, 1191-1192 [2018], lvdenied 31 NY3d 1116 [2018]).
The testimony of Darrah, the sole witness at the Huntley hearing, established thatafter defendant was randomly sent by another correction officer to be pat-frisked, defendantadmitted that he had a wooden object in the waistband of his pants. While conducting the patfrisk, Darrah uncovered the object, kept it in his possession and notified his area supervisor.While waiting for the supervisor, Darrah continued to ask defendant questions, during whichdefendant made an admission that the object was a weapon. During this conversation, Darrahexplained that defendant was not free to leave the pat-frisk area, however, he was not inrestraints. In fact, Darrah testified that defendant was not placed in restraints until he wasescorted away from the area by another correction officer. In light of this testimony, we find thatthe exchange between defendant and Darrah was not custodial, but rather was a "routine,on-the-scene investigatory detention" (People v Decker, 159 AD3d at 1191 [internalquotation marks, brackets and citation omitted]; see People v Davis, 167 AD3d at 1331;People v Darrell, 145 AD3d at 1319; compare People v Gause, 50 AD3d 1392, 1393-1394 [2008]).Accordingly, County Court properly denied defendant's motion to suppress the statement.
Nor are we persuaded by defendant's assertion that County Court improperly allowed opiniontestimony of Darrah and St. Louis. "The trial court has considerable discretion in determining theadmissibility of expert testimony. The court is not required to explicitly declare a witness anexpert before permitting such testimony" (People v Lamont, 21 AD3d 1129, 1132 [2005], lv denied 6NY3d 835 [2006] [citations omitted]; see People v Garcia-Toro, 155 AD3d 1086, 1090 [2017], lvdenied 30 NY3d 1115 [2018]). Additionally, when a correction officer bases his or heropinion on factual testimony, "his [or her] training and experience set forth in the record [is]sufficient to qualify him [or her] to render such an opinion" (People v Lamont, 21 AD3dat 1132; see generally People vWright, 13 AD3d 726, 728 [2004], lv denied 5 NY3d 857 [2005]; People vDuchowney, 166 AD2d 769, 770-771 [1990]). Here, Darrah and St. Louis testified that,according to DOCCS rules and regulations, they considered the object possessed by defendant tobe contraband, dangerous contraband and a weapon.[FN2] Prior to giving their opinions, Darrah and St.Louis testified as to their respective work experience, training, knowledge of DOCCS rules andregulations and, specifically, their familiarity with both contraband and dangerous contraband(see People v Garcia-Toro, 155 AD3d at 1090; People v Lamont, 21 AD3d at1132). Given the qualifications and experience of these witnesses, we discern no error inadmitting this testimony (see People v Garcia-Toro, 155 AD3d at 1090; People vLamont, 21 AD3d at 1129; People v Wright, 13 AD3d at 728). Nor do we discernany error in the court denying defendant's request for an expert witness charge. The testimony ofthese witnesses was not "strictly expert testimony, but was factual testimony" based on theirdiscovery and subsequent seizure of the object during the incident (People v Lamont, 21AD3d at 1132). Reviewing the jury charge as a whole, it fairly instructed the jury on the correctrules to be applied, including that the jury alone was the sole judge of the facts and that thecorrection officers' testimony should not be believed solely because they are correction officers,and, as such, the court did not improvidently exercise its discretion in declining to give an expertwitness charge (see People v Samuels, 99 NY2d 20, 25 [2002]; People v Rebollo, 107 AD3d 1059,1061 [2013]).
Defendant's failure to raise timely and specific objections during the People's summationrender his claims of prosecutorial misconduct unpreserved for our review (see CPL470.05 [2]; People v Alexander, 160AD3d 1121, 1124 [2018], lv denied 31 NY3d 1144 [2018]; People v Scippio, 144 AD3d 1184,1187-1188 [2016], lv denied 28 NY3d 1150 [2017]). Were these issues before us, wewould find either that the challenged comments were made in response to defendant's summationor constituted fair comment on the evidence at trial or, if any were improper, they " 'werenot so pervasive or flagrant as to require a reversal' " (People v Johnson, 151 AD3d 1462, 1466 [2017], lv denied30 NY3d 1106 [2018], quoting People vMcCall, 75 AD3d 999, 1002 [2010], lv denied 15 NY3d 894 [2010]). Defendantalso argues that trial counsel was ineffective based solely upon the failure to object to thechallenged comments. However, because any such objections would have had little or no chanceof success, defendant's ineffective assistance claim is unavailing (see People v Caban, 5 NY3d 143,152 [2005]; People v Johnson, 151 AD3d at 1466).
Garry, P.J., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The object was admitted intoevidence and was in the jury room during deliberations.
Footnote 2:We note that, when defensecounsel objected to St. Louis being asked if he considered the object to be dangerous contraband,County Court sustained the objection. Also, Darrah was not asked if he considered the object tobe a weapon, therefore, this question was only posed to St. Louis.