| People v Barzee |
| 2021 NY Slip Op 00052 [190 AD3d 1016] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Saio Barzee, Appellant. |
Brian M. Quinn, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Rebecca L. Fox of counsel), forrespondent.
Colangelo, J. Appeal from a judgment of the County Court of Clinton County (Bruno, J.),rendered July 17, 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. The charges stemmed from allegations that, during a random pat frisk of defendant, aplexiglass shank fell out of his left pant leg. At the conclusion of a jury trial, defendant wasfound guilty as charged. Defendant was ultimately sentenced to concurrent prison terms of 3 to 6years for each conviction, to be served consecutively to his current term of incarceration.Defendant appeals, and we affirm.
Initially, defendant contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence. "Inasmuch as [defendant's] motion for atrial order of dismissal was not directed at the specific arguments that he raises on appeal,defendant's legal insufficiency claim is unpreserved" (People v Bombard, 187 AD3d 1417, 1417 [2020] [citationsomitted]; see People v Gray, 86 NY2d 10, 19-20 [1995]; People v Meadows, 183 AD3d1016, 1016-1017 [2020], lv denied 35 NY3d 1047 [2020]; People v Shackelton, 177 AD3d1163, 1165 [2019], lv denied 34 NY3d 1162 [2020]; People v Youngs, 175 AD3d 1604,1606 [2019]). "Nevertheless, in reviewing defendant's challenge to the weight of the evidence,we necessarily determine whether all of the elements of the charged crimes were proven beyonda reasonable doubt" (People v Bombard, 187 AD3d at 1417-1418 [internal quotationmarks, brackets and citations omitted]; see People v Brinkley, 174 AD3d 1159, 1160 [2019], lvdenied 34 NY3d 979 [2019]). "In conducting a weight of the evidence review, we must viewthe evidence in a neutral light and determine first whether a different verdict would have beenunreasonable and, if not, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony to determine ifthe verdict is supported by the weight of the evidence" (People v Bombard, 187 AD3d at1418 [internal quotation marks and citations omitted]; see People v Bleakley, 69 NY2d490, 495 [1987]; People v Brinkley, 174 AD3d at 1160).
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 inthe fourth degree . . . and has been previously convicted of any crime" (Penal Law§ 265.02 [1]).[FN1] "A person is guilty of promoting prisoncontraband in the first degree when[,] . . . [b]eing a person confined in a detentionfacility, he [or she] knowingly and unlawfully makes, obtains or possesses any dangerouscontraband" (Penal Law § 205.25 [2]).[*2]"Contraband" is defined as "any article or thing which a personconfined in a detention facility is prohibited from obtaining or possessing by statute, rule,regulation or order" (Penal Law § 205.00 [3]), whereas "[d]angerous contraband" isdefined as "contraband which is capable of such use as may endanger the safety or security of adetention facility or any person therein" (Penal Law § 205.00 [4]; see People v Andrade, 172 AD3d1547, 1549 [2019], lv denied 34 NY3d 928 [2019]).
At trial, Matthew Moak, a correction officer, testified that a plexiglass shank fell fromdefendant's left pant leg during a random pat frisk. Andrew Burgess, a correction sergeant,testified that he witnessed the plexiglass shank fall from defendant's left pant leg. Defendant wasthen escorted by Moak and Burgess to the hospital and searched again. No other contraband wasrecovered. The plexiglass shank, which had been retrieved and secured by Moak, wasphotographed in black and white, and, at trial, both the photograph and the plexiglass shank wereidentified by Moak and Burgess, introduced into evidence and published to the jury withoutobjection. The testimony further established that defendant's identity was ascertained by thestate-issued identification card found on his person.
Moak testified that a plexiglass shank such as the one recovered from defendant poses asecurity risk to individuals inside of the facility and has been used to cause cuttings, stabbingsand death. Moreover, according to Moak, the shank poses an additional security risk because it isdetectable only by a pat frisk and would not activate a metal detector. Moak testified that he hadno contact with defendant before or after the incident. Burgess testified that according to rulesand regulations of the Department of Corrections and Community Supervision, inmates aresubject to random pat frisks any time they are in movement, and no suspicion is required before apat frisk can be conducted. Burgess defined contraband as any item that an inmate should nothave within his or her possession or in his or her cell at any time, and he explained thatdangerous contraband is any object that would readily cause physical harm against another.According to Burgess, while not all contraband is considered dangerous, the plexiglass shankrecovered from defendant is dangerous contraband since, as a piece of plexiglass sharpened to apoint, it is readily able to cause a puncture wound, laceration or serious injury. Burgess testifiedthat the plexiglass shank possessed by defendant is not permitted in the facility under anycircumstances, including for an inmate's own protection. Burgess further testified that theplexiglass shank was likely made by defendant from a commissary mirror in his cell.
Defendant testified in narrative form as to the random pat frisk, asserting, among otherthings, that the shank was not recovered from him. He testified that he has no reason to carry aweapon because "[[*3]his] hands [are] good" and he "box[es] so[he] do[es]n't need . . . weapons." Defendant professed his innocence and testifiedthat he declined a plea offer of 1
As to the weight of the evidence, a different verdict would not have been unreasonable as thejury could have credited defendant's testimony that he never possessed the shank. However, whenwe view the foregoing evidence in a neutral light and accord deference to the jury's credibilitydeterminations, we find that the jury's verdict as to both convictions is supported by the weight ofthe evidence (see People v Andrade, 172 AD3d at 1551; People v Persen, 185 AD3d 1288,1291-1292 [2020]; People vRobinson, 183 AD3d 1118, 1122 [2020], lv denied 35 NY3d 1069 [2020]).Moreover, contrary to defendant's contention regarding his conviction for criminal possession ofa weapon in the third degree, the testimony of Moak and Burgess established defendant'spossession of the shank and that it was made primarily for use as a weapon. Thus, once the jurycredited the testimony establishing these elements of this crime, "the jury was entitled to inferfrom such possession that defendant had intended to use the [shank] unlawfully" (People v Pendelton, 90 AD3d1234, 1235 [2011], lv denied 18 NY3d 996 [2012]; see Penal Law§ 265.15 [4]; People vSolomon, 78 AD3d 1426, 1428 [2010], lv denied 16 NY3d 899 [2011]).
We are similarly unpersuaded by defendant's contention that he was denied a fair trial basedupon County Court's denial of his motion to subpoena certain defense witnesses or to order thatthey be produced at trial. "Although a defendant has a fundamental right to call witnesses for his[or her] own defense, the right to an adjournment for any purpose . . . rests withinthe sound discretion of the trial court" (People v Benson, 260 AD2d 864, 865 [1999][citations omitted], lv denied 93 NY2d 966 [1999]; see People v Singleton, 41NY2d 402, 405 [1977]). "When a defendant seeks an adjournment so that a potential witness canbe produced, it is incumbent upon the defendant to demonstrate, among other things, that thewitness would furnish testimony that is both material and favorable to the defense" (People v Horton, 181 AD3d 986,994 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 1045[2020]). Here, defendant did not establish that additional testimony from Moak and Burgess, aswell as the proposed testimony from a correction captain who was neither present nor prepared totestify, would be material or relevant to his defense, and the court therefore acted within itsdiscretion in denying defendant's request for an adjournment (see People v Diggins, 11 NY3d 518, 524 [2008]; People vHorton, 181 AD3d at 994[*4]; People v Booker, 141 AD3d 834,835 [2016], lv denied 28 NY3d 1026 [2016]).
With regard to defendant's challenge to County Court's instruction that the plexiglass objectwas a dangerous instrument, defendant failed to object to the instruction during the chargingconference or after the instruction was given to the jury so as to preserve said claim for ourreview (see CPL 470.05 [2]; People v Houze, 177 AD3d 1184, 1188 [2019], lv denied34 NY3d 1159 [2020]; People vHeiserman, 127 AD3d 1422, 1424-1425 [2015]).
We reject defendant's contentions that his counsel was ineffective and that County Courtimproperly denied his request for substitution of counsel. Defendant contends that, because hiscounsel failed to make certain motions, including a motion to suppress the shank, and failed toprovide him with certain papers he was forced to represent himself. "To establish a claim ofineffective assistance of counsel, a defendant is required to demonstrate that he or she was notprovided meaningful representation and that there is an absence of strategic or other legitimateexplanations for counsel's allegedly deficient conduct" (People v Santana, 179 AD3d 1299, 1302 [2020] [internal quotationmarks and citations omitted], lv denied 35 NY3d 973 [2020]). "There can be no denial ofeffective assistance of [defense] counsel arising from counsel's failure to make a motion orargument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marksand citation omitted]; see People vKelsey, 174 AD3d 962, 965 [2019], lv denied 34 NY3d 982 [2019]; People v Richardson, 162 AD3d1328, 1332 [2018], lv denied 32 NY3d 1128 [2018]).
The record establishes that defendant's counsel filed motions and made discovery demandson his behalf, provided him with all of the documents received from the People and advocated onhis behalf during appearances. It was also established that the pat frisk of defendant wasconducted and authorized in accordance with Department of Corrections and CommunitySupervision Directive No. 4910. As such, we find that defendant has not demonstrated theabsence of strategic reasons for defense counsel's conduct or that, had counsel made the motionsor taken the actions defendant now points to, there was any likelihood of success (see Peoplev Caban, 5 NY3d at 152; People vForney, 183 AD3d 1113, 1116 [2020], lv denied 35 NY3d 1065 [2020]; People v Watkins, 180 AD3d1222, 1223-1234 [2020], lv denied 35 NY3d 1030 [2020]). Accordingly, we findthat defendant was provided with meaningful representation. We also cannot say that CountyCourt abused its discretion in denying defendant's request for the appointment of new counselwithout additional inquiry, as defendant failed to demonstrate good cause for substitution ofcounsel (see People v Medina, 44 NY2d 199, 207-208 [1978]; People v Graham, 188 AD3d 909,909-910 [2020]; People v Howard,119 AD3d 1090, 1091 [2014], lv denied 24 NY3d 961 [*5][2014]).
Defendant also contends that the sentence imposed was harsh and excessive. "It is wellsettled that a sentence that falls within the permissible statutory ranges will not be disturbedunless it can be shown that the sentencing court abused its discretion or that extraordinarycircumstances exist warranting a modification in the interest of justice" (People v Simmons, 122 AD3d1169, 1169 [2014] [internal quotation marks, brackets and citations omitted], lvdenied 25 NY3d 1171 [2015]; accord People v Hightower, 186 AD3d 926, 932 [2020], lvdenied 35 NY3d 1113 [2020]; seePeople v Cancer, 185 AD3d 1353, 1354 [2020]). Given defendant's criminal history andthe fact that the sentence imposed for his convictions was within the statutory range and less thanthe maximum allowed, we discern no extraordinary circumstances or an abuse of discretion thatwould warrant a modification of the sentence.
The remaining arguments in defendant's supplemental pro se brief do not warrant extensivediscussion. Defendant's claim that he was deprived of a fair trial based upon various actions ofthe prosecutor are unpreserved as "defendant failed to raise timely, specific objections to eachinstance of alleged prosecutorial misconduct" (People v Santiago, 185 AD3d 1151, 1154-1155 [2020], lvdenied 35 NY3d 1097 [2020]; seePeople v Fragassi, 178 AD3d 1153, 1156-1157 [2019], lv denied 34 NY3d 1128[2020]). Contrary to defendant's assertions that he was denied access to Moak's grand jurytestimony and to Rosario material, the record reflects that defense counsel acknowledgedreceipt of this material from the People and provided same to defendant.[FN2] We also reject defendant's contention that thePeople committed a Brady violation by failing to disclose alleged exculpatory materialfrom a prison disciplinary hearing. The People were not in possession of such material, and thePeople are under no obligation to locate and gain possession of material from a prisondisciplinary hearing for the purpose of turning the material over to the defense, as such anobligation only arises when such material is in the People's possession (see People vHoward, 87 NY2d 940, 941 [1996]; People v McPherson, 170 AD3d 1255, 1257 [2019], lvdenied 33 NY3d 1071 [2019]). To the extent that we have not specifically addresseddefendant's remaining contentions, they have been examined and found to be without merit.
Garry, P.J., Egan Jr. and Mulvey, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:"A person is guilty of criminalpossession of a weapon in the fourth degree when . . . [h]e or she possesses. . . [a] dangerous or deadly instrument or weapon with intent to use the sameunlawfully against another" (Penal Law § 265.01 [2]).
Footnote 2:Selected portions of the grandjury minutes are part of the appendix to the brief submitted by defendant's appellate counsel.