| People v Robinson |
| 2020 NY Slip Op 02950 [183 AD3d 1118] |
| May 21, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kendale Robinson, Appellant. |
G. Scott Walling, Slingerlands, for appellant, and appellant pro se.
J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel),for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered December 15, 2017, upon a verdict convicting defendant ofthe crime of promoting prison contraband in the first degree.
In August 2016, defendant was an inmate at Great Meadow Correctional Facility inWashington County serving a life sentence without parole after being convicted ofmurder in the first degree. While walking out to the prison's recreational yard, defendantallegedly set off the metal detector and was ordered by correction officers to sit in adevice used to scan for metal objects on or inside a body. While being scanned, he wasquestioned by a correction officer. Defendant then allegedly swallowed an unknownobject that he was holding in his mouth and became involved in an altercation with thecorrection officer. Per prison policy, defendant was placed on contraband watch, inwhich he was placed in a modified cell for constant observation. On the fourth day of thecontraband watch, defendant allegedly passed out of his body a scalpel-type instrumentwrapped in plastic. The instrument was confiscated by one of the correction officers whohad been monitoring defendant. Defendant was thereafter charged with promoting prisoncontraband in the first degree. Following a jury trial, defendant was found guilty ascharged and thereafter sentenced, as a second felony offender, to a prison term of3
Defendant contends that the evidence was legally insufficient to prove his guilt, andthat the verdict was against the weight of evidence, as the People failed to establish thatthe scalpel was "dangerous contraband" (Penal Law § 205.25 [2]) or that hehad possessed the scalpel, and that the testimony of the correction officer monitoringdefendant on the contraband watch was unreliable and should not have been credited. Atthe close of the People's proof, defendant moved to dismiss, alleging that the People had"fail[ed] to make a prima facie case of the elements against [defendant] based on thetestimony that was given." County Court denied that motion. As this motion was not"specifically directed at the error being urged" (People v Hawkins, 11 NY3d 484, 492 [2008] [internalquotation marks and citation omitted]; see People v Gray, 86 NY2d 10, 19[1995]) and defendant did not renew this motion prior to summations (see People v Valverde, 122AD3d 1074, 1075 [2014], lv denied 27 NY3d 970 [2016]), defendant's legalsufficiency challenge is unpreserved. However, there is no preservation requirement as todefendant's weight of the evidence challenge, and this claim "requires consideration ofthe adequacy of the evidence as to each element of the crime[ ]" (People v Delbrey, 179 AD3d1292, 1293-1293 [2020] [internal quotation marks and citation omitted]; see People v Silcox-Mix, 159AD3d 1060, 1060 [2018]).
A correction officer (hereinafter the CO) testified that he was present whendefendant set off the metal detectors on his way to the recreational yard, thus indicatingthat defendant "had metal on him." The CO ordered defendant to sit in the scanningdevice and, while attempting to speak to defendant, he noticed something in defendant'smouth. The CO stated that when he asked defendant what it was, defendant swallowedthe item and "pushed [the CO] out of the way, at which time force became necessary."On cross-examination, the CO stated that he "could see black" in defendant's mouth, andbelieved it was contraband because defendant swallowed the item. A sergeant whoresponded to the incident also testified. Upon arriving at the foyer adjoining therecreational yard, the sergeant saw defendant in "mechanical restraints." The sergeantthereafter escorted defendant to the facility hospital, and later to an area used forcontraband watch. Prior to placing defendant in the modified cell, the sergeant watchedas the area was searched for contraband, and defendant was also searched again forcontraband prior to placing him in the cell; no contraband was found.
A second CO testified that he monitored defendant on contraband watch. The secondCO described the facility's procedures for contraband watch, including loggingdefendant's activities in the cell and searching his waste for contraband. He testified that,as per facility procedure, he called his supervisor prior to searching for contraband. Thesecond CO stated that, on the date defendant passed the scalpel and upon receiving thepan of waste from defendant, he was able to view "something foreign almostimmediately" and that the object, which was "about an inch and a quarter, inch and a halflong," was wrapped in plastic. With the supervisor present, he opened the plastic andfound "a scalpel type blade." The object appeared to be made of a "stainless materialtype," and electrical tape was wrapped "around one end" of the object, acting as "a sheathor a cover" over the blade. This item was admitted into evidence. The second CO furthertestified that such an item was considered to be dangerous contraband, as it could "cutsomebody pretty deeply." On cross-examination, the second CO stated that he was "outof eyesight" but in "the same general area" as defendant when he found the contraband,approximately four cells from where defendant was being held.
The supervisor was called by defendant to testify and stated that the second COperformed the contraband search in a cell near defendant, while the supervisor kept a"visual" of defendant. In contrast to the second CO's testimony, the supervisor stated thathe did not see anything unusual in defendant's waste prior to the search; oncross-examination, the supervisor indicated that the second CO showed him thecontraband after cleaning the item. He also stated that the type of scalpel blade found isused by the prison's medical facility, and that, per facility policy, the medical facilityconducted an inventory of the blades. No such blade was missing.
Defendant testified that the metal detector never went off, but rather that he was toldby the CO "to come over to the wall to get pat-frisked." After being pat-frisked, he wastold to sit in the scanning device, and he was asked questions, such as his name and celllocation. Defendant attempted to walk away, but was told to stop. The CO then told himto open his mouth, which defendant indicated is "not part of a pat-frisk," and then the CObegan to choke him, causing defendant to "push [the CO] off." Defendant said thatseveral officers then punched and kicked him while he was lying on the floor. Defendantoffered photos of his face, taken in the prison's medical facility after the altercation,which he stated demonstrated "swelling" and a "speed knot," and further stated that hetold a nurse about pain in his face and hand. Defendant denied swallowing contraband.On cross-examination, defendant acknowledged that he did not report—eitherwith the facility or an agency outside the facility—having allegedly been chokedby the CO.
Had the jury credited defendant's account of events and the evidence he presented, adifferent verdict would not have been unreasonable; accordingly, this Court must, likethe trier of fact below, "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (People v Callender, 48 AD3d976, 977 [2008] [internal quotation marks and citations omitted], lv denied10 NY3d 860 [2008]; see generally People v Bleakley, 69 NY2d 490, 495[1987]). Defendant contends that the People failed to prove two elements of the chargedcrime—that defendant possessed the scalpel and that the scalpel was dangerous,specifically in that it was sharp or capable of cutting (see Penal Law§ 205.25 [2]). However, the jury could reasonably have concluded thatdefendant possessed the scalpel, given the extensive testimony of both the supervisor andthe second CO describing the facility's procedures for contraband watch and the detailsof defendant's specific contraband watch (see People v Bryson, 150 AD3d 1406, 1407 [2017]; People v Carter, 90 AD3d1159, 1160 [2011]). The determination whether contraband is dangerous rests onwhether "there is a substantial probability that the item will be used in a manner that islikely to cause death or other serious injury, to facilitate an escape, or to bring aboutother major threats to a detention facility[ ]" (People v Finley, 10 NY3d 647, 657 [2008]; see People v Green, 119 AD3d23, 26 [2014], lv denied 23 NY3d 1062 [2014]; see also Penal Law§ 205.00 [4]).
The jury, upon viewing the item in evidence, could reasonably have found that thetestimony about its dangerousness was accurate; in any event, even an item unable torender harm has been considered to be dangerous contraband (see People vSilcox-Mix, 159 AD3d at 1061 [a fabricated "soap gun" made from bars of soap,notebook paper and carbon paper "would likely have led to the use of deadly force toprotect against the apparent threat posed by the presence of a gun"]; People v Carralero, 9 AD3d790, 791 [2004], lv denied 4 NY3d 742 [2004]). Moreover, we find no meritin defendant's contentions that the inconsistencies in the testimony of the supervisor andthe second CO were so significant as to require that the verdict be set aside, particularlyas "such inconsistencies were highlighted to the jury," thus allowing it to render adetermination as to witness credibility (People v Carter, 90 AD3d at 1160; see People v Breedlove, 61AD3d 1120, 1121 [2009], lv denied 12 NY3d 913 [2009]; People v Gilliam, 36 AD3d1151, 1152 [2007], lv denied 8 NY3d 946 [2007]). "Evaluating the evidencein a neutral light and extending appropriate deference to the jury's superior opportunity toassess the witnesses' credibility, we do not find that the verdict was contrary to theweight of [the] evidence" (People v Gilliam, 36 AD3d at 1152-1153; seePeople v Bleakley, 69 NY2d at 495).
Defendant's contention that County Court erred by not permitting the jury to considerthe lesser included offense of promoting prison contraband in the second degree isunpreserved for appellate review, as defendant only moved to include the offense ofattempted possession of prison contraband (see People v Osorio, 49 AD3d 562, 563 [2008], lvdenied 11 NY3d 834 [2008]).[FN*] Defendant's further arguments thatcertain statements made by the prosecutor during summation constituted prosecutorialmisconduct are also unpreserved, but we will address these claims in the context ofdefendant's assertion that his counsel provided ineffective assistance due to the failure toobject to these statements. Upon review, we find that the challenged statements eitherresponded to defendant's attack on the credibility of the People's witnesses or constituteda fair comment on the evidence, and thus were not improper (see People v Nunes, 168 AD3d1187, 1193 [2019], lv denied 33 NY3d 979 [2019]).
Defendant further avers that he received ineffective assistance of counsel as hiscounsel failed to object to an in-court identification of defendant by the second CO,which was not offered in the People's CPL 710.30 notice. This identification did notarise through police-arranged identifications, but rather was based upon the second CO'sidentification of defendant as the individual whom he had monitored on contrabandwatch over the course of several days and observed passing the contraband. We thus findno error (see People vAnderson, 149 AD3d 1407, 1410 [2017], lv denied 30 NY3d 947[2017]; People v Butler, 16AD3d 915, 916 [2005], lv denied 5 NY3d 786 [2005]; see also CPL710.30 [1] [a], [b]). The record reveals that counsel conducted opening and closingstatements, moved to dismiss the charge, attempted to get instructions on a lesserincluded charge, conducted cross-examination of the People's witnesses and presentedtestimony on defendant's behalf. As such, defendant received meaningful representation(see People v Mamadou,172 AD3d 1524, 1526 [2019], lv denied 33 NY3d 1106 [2019]).
Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:In any event, defendant'sclaims as to the lesser included charge are without merit. Promoting prison contraband inthe first degree requires proof of "dangerous contraband" (Penal Law§ 205.25 [2]), while the second degree charge only requires proof of "anycontraband" (Penal Law § 205.20 [2]). No reasonable view of the evidencesupports the claim that the scalpel-type blade was contraband, but not dangerouscontraband (see People v Carralero, 9 AD3d at 791).