Opinion
241 KA 16–01400
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Trevon KILLINGS, Defendant–Appellant.
ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree ( Penal Law § 205.25[2] ) and tampering with physical evidence (§ 215.40[2] ). Defendant's conviction arose from an incident that occurred when he was an inmate in a correctional facility, in which he fought with another inmate. Defendant was observed making slashing motions toward the other inmate, who sustained a laceration on his cheek. The fight was observed by one correction officer and, when other correction officers arrived to assist, the inmates stopped fighting and assumed a position to be frisked. No contraband was recovered.
Defendant contends that the conviction of promoting prison contraband in the first degree is not based on legally sufficient evidence with respect to his identity and his possession of the dangerous contraband. We reject that contention. 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 [1983] ), we conclude that defendant's identity as the inmate who was fighting with another inmate while making slashing motions and his possession of dangerous contraband is supported by legally sufficient evidence (see People v. Hurd, 161 A.D.2d 841, 842, 555 N.Y.S.2d 888 [3d Dept. 1990], lv denied 76 N.Y.2d 858, 560 N.Y.S.2d 998, 561 N.E.2d 898 [1990] ). The correction officer who witnessed the fight was unable to make an in-court identification of defendant at trial, but he testified that he confirmed defendant's identification immediately after the fight by being shown defendant's identification card. In addition, other correction officers who arrived at the scene after the fight ended identified defendant at trial as one of the two inmates who was frisked and interviewed after the incident. Although no weapon was recovered, the evidence further established that the other inmate sustained a cut to his cheek that required 30 sutures, and there was testimony that the injury was consistent with a weapon fashioned from a razor blade, scalpel, can lid, or exacto knife. The jury could thus infer based on that evidence that defendant possessed dangerous contraband (see People v. Blunt, 149 A.D.3d 1573, 1573, 52 N.Y.S.3d 801 [4th Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017] ). We reject defendant's further contention that his conviction of tampering with physical evidence is not based on legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). 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 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's contention, County Court properly denied his request for a missing witness charge with respect to the other inmate involved in the fight. Defendant failed to meet his burden of establishing that the witness would provide testimony that was favorable to the People (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867 [2010] ; People v. Santos, 151 A.D.3d 1620, 1622, 57 N.Y.S.3d 262 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ). Indeed, in requesting the missing witness charge, defendant asserted that it was anticipated that the inmate "would testify favorably for the defense." Finally, we reject defendant's contention that the sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.