PEOPLE v. WILSON (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ), arising from his possession of, inter alia, a drawing of the recreation yard and back area of the jail.   Defendant contends that the evidence is legally insufficient to support the conviction because the People failed to establish that he possessed dangerous contraband.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Pursuant to Penal Law § 205.25(2), “[a] person is guilty of promoting prison contraband in the first degree when ․ [b]eing a person confined in a detention facility, he [or she] knowingly and unlawfully makes, obtains or possesses any dangerous contraband.”  “[T]he test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security” (People v. Finley, 10 N.Y.3d 647, 657, 862 N.Y.S.2d 1, 891 N.E.2d 1165).   Items that facilitate an escape are properly considered dangerous contraband because they endanger the safety or security of a facility (see People v. Jones, 134 A.D.2d 701, 703, 521 N.Y.S.2d 194, lv. denied 71 N.Y.2d 969, 529 N.Y.S.2d 81, 524 N.E.2d 435).   Here, we conclude that the drawing of the recreation yard and back area of the jail is an item that could facilitate escape and thus constitutes dangerous contraband.

We reject the further contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   In addition, we conclude that County Court's “imposition of a sentence more severe than that offered during plea negotiations does not support the contention of defendant that he was penalized for exercising his right to go to trial” (People v. Kerrick, 37 A.D.3d 1058, 1059, 829 N.Y.S.2d 325, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240;  see People v. Taplin, 1 A.D.3d 1044, 1046, 767 N.Y.S.2d 541, lv. denied 1 N.Y.3d 635, 777 N.Y.S.2d 33, 808 N.E.2d 1292).   Contrary to defendant's further contention, the verdict is not 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).   We reject defendant's contention that the persistent felony offender statute is unconstitutional (see People v. Rivera, 5 N.Y.3d 61, 63, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 333-335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160), and we further conclude that the court complied with the procedural requirements of Penal Law § 70.10 in sentencing defendant as a persistent felony offender.   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: