Opinion
112242
03-16-2023
The PEOPLE of the State of New York, Respondent, v. James CASEY, Appellant.
Clifford P. Owens, Acting Public Defender, Kingston (Carly P. Burkhardt of counsel), for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Clifford P. Owens, Acting Public Defender, Kingston (Carly P. Burkhardt of counsel), for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from a judgment of the County Court of Ulster County (Donald A. Williams Jr., J.), rendered December 18, 2019, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree. Defendant, an incarcerated individual, was charged by indictment with promoting prison contraband in the first degree for possessing a razor blade while confined in a correctional facility. Following a jury trial, defendant was convicted as charged. County Court thereafter sentenced defendant to a prison term of 3½ to 7 years, to run consecutively to a sentence that he was then serving. This appeal ensued.
Defendant challenges the verdict as being against the weight of the evidence on the grounds that the proof did not establish that he possessed the razor blade at issue and that such blade was not dangerous. The trial evidence discloses that, while being processed at a correctional facility, defendant failed to clear the "BOSS chair." As a consequence, defendant was placed on a contraband watch, which involved maintaining a constant visual of him, monitoring his activities at 15–minute intervals and searching his waste for contraband. After defendant defecated in a bedpan, a correction officer searched the bedpan and discovered "an exacto-type blade" wrapped within layers of cellophane, toilet paper, latex and electrical tape. The correction officer testified that incarcerated individuals were not allowed to possess the razor blade that was recovered and that such blade could cause physical harm to another person. Following the defecation by defendant, he cleared the BOSS chair.
A correction officer testified that the BOSS chair detects the presence of metal in the body of a person who sits on the chair.
For his part, defendant testified that he never triggered the BOSS chair when he was initially processed and denied possessing a razor blade. The jury could have believed defendant's testimony and, accordingly, a different result would not have been unreasonable (see People v. Khalil, 206 A.D.3d 1300, 1305, 170 N.Y.S.3d 658 [3d Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 208, 197 N.E.3d 488 [2022] ). Nevertheless, the jury was best situated to evaluate the credibility of the witnesses (see People v. Bush, 184 A.D.3d 1003, 1006, 126 N.Y.S.3d 570 [3d Dept. 2020], lv denied 35 N.Y.3d 1093, 131 N.Y.S.3d 296, 155 N.E.3d 789 [2020] ) and apparently did not credit defendant's testimony. Deferring to the jury's credibility determinations and viewing the evidence in a neutral light, the verdict is not against the weight of the evidence (see People v. Breedlove, 61 A.D.3d 1120, 1121, 878 N.Y.S.2d 465 [3d Dept. 2009], lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ; People v. Callender, 48 A.D.3d 976, 977–978, 851 N.Y.S.2d 729 [3d Dept. 2008], lv denied 10 N.Y.3d 860, 860 N.Y.S.2d 486, 890 N.E.2d 249 [2008] ).
Defendant asserts that County Court erred in directing that he be shackled and handcuffed during trial. After conducting a hearing on the issue, during which a correction officer and defendant testified, the court found that a reasonable basis existed to have defendant shackled and handcuffed. The court factored defendant's prior criminal history, which included assaulting a correction officer with a razor blade, defendant's multiple prison misbehavior reports, which also included assaulting staff, and the request by the Department of Corrections and Community Supervision. Given that the hearing evidence supports the court's findings, the court did not err in its determination to have defendant handcuffed and shackled (see People v. Diaz, 163 A.D.3d 110, 118, 78 N.Y.S.3d 792 [3d Dept. 2018], lv denied 32 N.Y.3d 1110, 91 N.Y.S.3d 362, 115 N.E.3d 634 [2018] ; People v. Robinson, 64 A.D.3d 803, 803–804, 884 N.Y.S.2d 488 [3d Dept. 2009] ; People v. Rivera, 189 A.D.2d 920, 921, 592 N.Y.S.2d 482 [3d Dept. 1993], lv denied 81 N.Y.2d 975, 598 N.Y.S.2d 777, 615 N.E.2d 234 [1993] ; People v. Gourdine, 188 A.D.2d 741, 741, 591 N.Y.S.2d 537 [3d Dept. 1992], lv denied 81 N.Y.2d 886, 597 N.Y.S.2d 947, 613 N.E.2d 979 [1993] ). The court also minimized any prejudice by giving an instruction that an adverse inference was not to be drawn against defendant (see People v. Diaz, 163 A.D.3d at 119, 78 N.Y.S.3d 792 ; People v. Brown, 176 A.D.2d 408, 408, 574 N.Y.S.2d 402 [3d Dept. 1991], lv denied 79 N.Y.2d 853, 580 N.Y.S.2d 725, 588 N.E.2d 760 [1992] ) and by having drapes over the table where defendant was sitting so as to conceal any restraints (see People v. Jenner, 39 A.D.3d 1083, 1087–1088, 835 N.Y.S.2d 501 [3d Dept. 2007], lv denied 9 N.Y.3d 845, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ). Furthermore, even if the court erred in ordering defendant to be handcuffed and shackled, any error was harmless (see People v. Banch, 198 A.D.3d 1186, 1190, 155 N.Y.S.3d 635 [3d Dept. 2021], lv denied 37 N.Y.3d 1144, 159 N.Y.S.3d 347, 180 N.E.3d 511 [2021] ).
To the extent that defendant has qualms with the instruction that was given, such argument is unpreserved in the absence of an objection to the instruction (see CPL 470.05[2] ).
Regarding defendant's remaining contentions, defendant did not object to County Court's Sandoval compromise ruling and, therefore, the challenge thereto is unpreserved (see People v. Jackson, 29 N.Y.3d 18, 23, 52 N.Y.S.3d 63, 74 N.E.3d 302 [2017] ; People v. Lafountain, 200 A.D.3d 1211, 1217, 157 N.Y.S.3d 628 [3d Dept. 2021], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 476, 185 N.E.3d 997 [2022] ). Defendant's claim that the prosecutor committed misconduct by making improper remarks during summation is likewise unpreserved given that no objection was raised to the challenged remarks (see People v. Morton, 198 A.D.3d 1176, 1180, 157 N.Y.S.3d 129 [3d Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 706, 181 N.E.3d 1134 [2022] ). Finally, the sentence is not unduly harsh or severe (see People v. Gourdine, 188 A.D.2d at 741, 591 N.Y.S.2d 537 ; People v. Lattanzio, 182 A.D.2d 872, 872, 582 N.Y.S.2d 41 [3d Dept. 1992], lv denied 80 N.Y.2d 834, 587 N.Y.S.2d 918, 600 N.E.2d 645 [1992] ). To the extent that defendant claims that the court evidenced bias during the sentencing hearing, defendant did not preserve this claim in the absence of a timely objection (see People v. Rennie–Russell, 201 A.D.3d 1246, 1247, 160 N.Y.S.3d 484 [3d Dept. 2022] ). We decline defendant's request to take corrective action in the interest of justice on either the unpreserved issues or the imposed sentence.
Garry, P.J., Clark, Reynolds Fitzgerald and McShan, JJ., concur. ORDERED that the judgment is affirmed.