Opinion
12-23-2015
The PEOPLE of the State of New York, Respondent, v. David M. DAVEY, Defendant–Appellant.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), For Respondent.
Charles A. Marangola, Moravia, for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), For Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DeJOSEPH, JJ.
MEMORANDUM:In appeal Nos. 1 and 2, defendant appeals from judgments convicting him upon a jury verdict of two counts of promoting prison contraband in the first degree (Penal Law § 205.25[2] ), as charged in separate indictments. Defendant, while an inmate at a correctional facility, was searched in the recreation yard and was found to have a folded tin can lid secreted in a glove in his pocket, resulting in a charge of promoting prison contraband in the first degree in one indictment. Defendant's cell was then searched, where a correction officer found a second folded tin can lid in a desk drawer and a metal shank hidden in defendant's mattress, resulting in two charges of promoting prison contraband in the first degree in a second indictment. The People presented the case to two different grand juries, and County Court granted the People's motion to consolidate the indictments. The jury found defendant not guilty regarding the can lid found in his cell, but guilty of the remaining counts.
By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to establish that defendant knowingly possessed dangerous contraband (Penal Law § 205.25[2] ). Both the folded can lid and the metal shank had characteristics "such that there is a substantial probability that the item[s] will be used in a manner that is likely to cause death or other serious injury" (People v. Finley, 10 N.Y.3d 647, 657, 862 N.Y.S.2d 1, 891 N.E.2d 1165 ).
Defendant's further contention that the verdict is repugnant is not preserved for our review because he did not object to the verdict on that ground before the jury was discharged (see People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247 ; People v. Spears, 125 A.D.3d 1401, 1402, 3 N.Y.S.3d 535,
lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ). In any event, that contention is without merit. "[A] conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" (People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 ). "A determination of whether a verdict is repugnant is based solely on a review of the trial court's charge regardless of its accuracy" (People v. Green, 71 N.Y.2d 1006, 1008, 530 N.Y.S.2d 97, 525 N.E.2d 742 ). Here, the court gave the same charge to the jury on the first two counts of promoting prison contraband in the first degree, but stated that the first count was with respect to the folded can lid that was allegedly found on defendant when he was in the prison yard, and the second count was with respect to the folded can lid that was allegedly found in the desk located in defendant's cell. Defendant's acquittal of the one count was not conclusive of the other count because they were separate items of dangerous contraband. In addition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although the evidence established that inmates were allowed to possess a folded can lid inside their cells to cut food, they were not allowed to carry them outside their cells.
Defendant next contends that the court's Sandoval ruling denied him his right to due process and a fair trial. "By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve that contention for our review" (People v. Poole, 79 A.D.3d 1685, 1685, 917 N.Y.S.2d 775, lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 ). In any event, the court's Sandoval ruling does not constitute an abuse of discretion (see People v. Smalls, 16 A.D.3d 1154, 1155, 792 N.Y.S.2d 748, lv. denied 5 N.Y.3d 769, 801 N.Y.S.2d 264, 834 N.E.2d 1274 ). "The extent to which prior convictions bear on the issue of a defendant's credibility is a question entrusted to the sound discretion of the court, reviewable only for clear abuse of discretion" (Poole, 79 A.D.3d at 1685–1686, 917 N.Y.S.2d 775 [internal quotation marks omitted] ). Defendant's prior convictions for petit larceny, criminal possession of stolen property, and robbery were "acts of individual dishonesty" (People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), and were particularly relevant to the issue of defendant's credibility (see People v. Walker, 66 A.D.3d 1331, 1332, 885 N.Y.S.2d 791, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 ). Defendant's contention that certain convictions were too remote in time is without merit inasmuch as defendant was incarcerated for much of the time following those convictions (see Smalls, 16 A.D.3d at 1154–1155, 792 N.Y.S.2d 748 ;
see generally People v. Stevens, 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637, lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 ). We conclude that "[t]he record establishes that the court ‘weighed appropriate concerns and limited both the number of convictions and the scope of permissible cross-examination’ " (People v. Rogers, 32 A.D.3d 1221, 1221–1222, 820 N.Y.S.2d 839, lv. denied 7 N.Y.3d 928, 827 N.Y.S.2d 697, 860 N.E.2d 999 ; see People v. Bausano, 122 A.D.3d 1341, 1341, 996 N.Y.S.2d 834, lv. denied 25 N.Y.3d 1069, 12 N.Y.S.3d 620, 34 N.E.3d 371 ; Poole, 79 A.D.3d at 1686, 917 N.Y.S.2d 775 ).
Contrary to defendant's contention, the court did not err in admitting in evidence the folded can lid recovered from him in the yard. There were "sufficient assurances of the identity and unchanged condition of the evidence ..., and thus any alleged gaps in the chain of custody went to the weight of the evidence, not its admissibility" (People v. Kennedy, 78 A.D.3d 1477, 1478, 910 N.Y.S.2d 602, lv. denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 ; see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). We further reject defendant's contention that the court abused its discretion in granting the People's motion to consolidate the indictments (see People v. Bankston, 63 A.D.3d 1616, 1616–1617, 880 N.Y.S.2d 417, lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 ; see generally People v. Lane, 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456 ). Although the offenses are based upon different criminal transactions, they are the "same or similar in law" (CPL 200.20[2][c] ; see People v. Cooper, 128 A.D.3d 1431, 1433, 9 N.Y.S.3d 490, lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 ). Moreover, evidence of defendant's possession of the can lid on his person with respect to one indictment would be admissible at the trial of the second indictment regarding his knowledge of the can lid in his desk drawer, and the offenses therefore were joinable under CPL 200.20(2)(b) (see People v. Rodriguez, 68 A.D.3d 1351, 1353, 890 N.Y.S.2d 735, lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 139, 925 N.E.2d 943 ; People v. Burroughs, 191 A.D.2d 956, 956–957, 595 N.Y.S.2d 264, lv. denied 82 N.Y.2d 715, 602 N.Y.S.2d 812, 622 N.E.2d 313 ). Defendant did not show that he would be prejudiced by the consolidation (see People v. Torra, 309 A.D.2d 1074, 1075, 766 N.Y.S.2d 912, lv. denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 ; see generally People v. Ward, 104 A.D.3d 1323, 1323, 960 N.Y.S.2d 839, lv. denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 ). He made no showing that he had important testimony to give regarding the charge in one indictment but the need to refrain from testifying regarding the charges in the other indictment (see Cooper, 128 A.D.3d at 1433, 7 N.Y.S.3d 919 ; see generally Lane, 56 N.Y.2d at 9–10, 451 N.Y.S.2d 6, 436 N.E.2d 456 ). Indeed, the fact that the jury acquitted defendant of one of the charges demonstrates that he was not prejudiced by the consolidation (see Ward, 104 A.D.3d at 1323–1324, 960 N.Y.S.2d 839 ; Rodriguez, 68 A.D.3d at 1353, 890 N.Y.S.2d 735 ).
The court properly denied defendant's request to charge the lesser included offense of promoting prison contraband in the second degree. Viewing the evidence in the light most favorable to defendant (see People v. Johnson, 45 N.Y.2d 546, 549, 410 N.Y.S.2d 569, 382 N.E.2d 1345 ), we conclude that there is no reasonable view of the evidence that defendant possessed contraband but not dangerous contraband (see People v. Carralero, 9 A.D.3d 790, 791, 780 N.Y.S.2d 245, lv. denied 4 N.Y.3d 742, 790 N.Y.S.2d 654, 824 N.E.2d 55 ; see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.