PEOPLE v. JACKSON (2018)

MEMORANDUM AND ORDER

On appeal from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ), defendant contends that the evidence is legally insufficient to establish that the item he was charged with possessing, i.e., a small, sharpened piece of metal in a pen cap, constitutes dangerous contraband within the meaning of Penal Law § 205.00 (4).  Defendant failed, however, to preserve that contention for our review inasmuch as his motion for a trial order of dismissal was not “ ‘specifically directed’ ” at that alleged deficiency in the People's evidence (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];  see People v. Womack, 151 A.D.3d 1852, 1852–1853, 57 N.Y.S.3d 603 [4th Dept. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 686, 86 N.E.3d 578 [2017] ).  Viewing the evidence in light of the elements of the crime 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 further contention that the verdict, insofar as it rests upon the jury's implicit finding that the item at issue constituted dangerous contraband, is against the weight of the evidence (see People v. Hood, 145 A.D.3d 1565, 1565–1566, 43 N.Y.S.3d 834 [4th Dept. 2016] ).

Defendant failed to preserve for our review his contention that County Court improperly penalized him for exercising his right to a jury trial when it imposed a sentence greater than that offered during plea negotiations (see People v. Coapman, 90 A.D.3d 1681, 1683–1684, 936 N.Y.S.2d 454 [4th Dept. 2011], lv. denied 18 N.Y.3d 956, 944 N.Y.S.2d 484, 967 N.E.2d 709 [2012] ).  In any event, that contention lacks merit (see People v. Dorn, 71 A.D.3d 1523, 1524, 895 N.Y.S.2d 906 [4th Dept. 2010] ).  Furthermore, the sentence imposed is not unduly harsh or severe.

Defendant's remaining contentions are raised in his pro se supplemental brief.  Defendant failed to preserve for our review the contentions that the jury was tainted when an individual juror viewed defendant in shackles outside the courtroom (see People v. McCummings, 195 A.D.2d 880, 881, 600 N.Y.S.2d 827 [3d Dept. 1993];  People v. Soltis, 137 A.D.2d 732, 733, 524 N.Y.S.2d 818 [2d Dept. 1988], lv denied 71 N.Y.2d 1033, 530 N.Y.S.2d 569, 526 N.E.2d 61 [1988] ), and that he was denied due process because he stood trial in prison garb (see People v. McNitt, 96 A.D.3d 1641, 1641, 946 N.Y.S.2d 802 [4th Dept. 2012], lv denied 19 N.Y.3d 998, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012];  see also People v. Cruz, 14 A.D.3d 730, 732, 786 N.Y.S.2d 848 [3d Dept. 2005], lv denied 4 N.Y.3d 852, 797 N.Y.S.2d 427, 830 N.E.2d 326 [2005] ).  We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).  We reject defendant's further contention that defense counsel was ineffective in failing to move for a mistrial based upon the juror's observation of defendant in shackles, “[i]nasmuch as a motion for a mistrial would have had ‘little or no chance of success’ ” (People v. Alexander, 109 A.D.3d 1083, 1085, 972 N.Y.S.2d 124 [4th Dept. 2013] ).  Finally, contrary to defendant's contention, we conclude that defense counsel's failure to object to defendant's appearance in prison garb did not constitute ineffective assistance of counsel (see People v. Jefferson, 58 A.D.3d 753, 753, 870 N.Y.S.2d 804 [2d Dept. 2009], lv denied 12 N.Y.3d 784, 879 N.Y.S.2d 61, 906 N.E.2d 1095 [2009];  People v. Marshall, 2 A.D.3d 1157, 1158, 768 N.Y.S.2d 703 [3d Dept. 2003], lv denied 2 N.Y.3d 743, 778 N.Y.S.2d 468, 810 N.E.2d 921 [2004] ).

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

Memorandum: