PEOPLE v. TORRES (2005)

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered June 23, 2003, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

Defendant, an inmate at Elmira Correctional Facility in Chemung County, was indicted and charged with promoting prison contraband in the first degree for having in his possession a 7 3/838-inch broken piece of plastic mirror discovered during a pat frisk following an altercation with another inmate.   Defendant moved unsuccessfully to have the indictment dismissed on the ground that he was not afforded an opportunity to testify before the grand jury, he entered and then withdrew a plea of guilty, and he made a number of unsuccessful requests for assignment of substitute counsel.   Following a jury trial, he was convicted as charged and now appeals.

 Although defendant contends that County Court should have dismissed the indictment because the People never responded to his request to testify before the grand jury (see CPL 190.50[5][a] ), he failed to meet his burden to prove actual receipt by the District Attorney of his written request to testify (see People v. Brown, 300 A.D.2d 918, 919, 752 N.Y.S.2d 755 [2002], lv. denied 100 N.Y.2d 536, 763 N.Y.S.2d 2, 793 N.E.2d 416 [2003] ).   Defendant alleged that he had mailed such a request, but there is no evidence in the record that it was ever received by the District Attorney (see id.;   People v. Washington, 284 A.D.2d 220, 726 N.Y.S.2d 268 [2001], lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 643, 758 N.E.2d 669 [2001] ).

 Defendant's ineffective assistance of counsel claim is also unavailing.   In essence, he alleges that his counsel failed to adequately communicate with him and employed an unfocused trial strategy.   Given defendant's early concession that the piece of mirror was his and he knowingly possessed it, counsel's strategy to show that it was not dangerous was reasonable and cannot be faulted merely because the jury resolved the conflicting testimonies against defendant (see People v. Plaisted, 2 A.D.3d 906, 909-910, 767 N.Y.S.2d 518 [2003], lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 470, 810 N.E.2d 923 [2004] ).   While we are aware that defendant and his counsel had difficulties communicating, our review of the circumstances of the case and counsel's performance as a whole leads us to conclude that meaningful representation was provided (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];  People v. Gilliam, 300 A.D.2d 701, 701, 752 N.Y.S.2d 722 [2002], lv. denied 99 N.Y.2d 628, 760 N.Y.S.2d 109, 790 N.E.2d 283 [2003] ).

 We must also reject defendant's contention that County Court erred in denying his request that substitute defense counsel be assigned.   Defendant complained to County Court that his counsel had not been responsive to his requests and would not call certain witnesses he believed to be important to his defense.   County Court responded to this concern by directing defense counsel to subpoena the four witnesses sought by defendant.   Given County Court's efforts to meet defendant's concerns, and defendant's failure to articulate any other compelling reason for substitution, the denial of his request cannot be said to be an abuse of discretion (see People v. Skaar, 225 A.D.2d 824, 825-826, 638 N.Y.S.2d 846 [1996], lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350 [1996];  People v. Stubbs, 197 A.D.2d 746, 747, 604 N.Y.S.2d 825 [1993] ).

 Finally, defendant argues that the jury's verdict was against the weight of the evidence because the piece of plastic mirror was not “dangerous” (see Penal Law § 205.25[2] ).   Contraband is considered dangerous if it is “capable of such use as may endanger the safety or security of a detention facility or any person therein” (Penal Law § 205.00[4] ).   At trial, the prosecution presented the testimony of two correction officers that the object found in defendant's possession was pointed, had the appearance of a knife and could be used to inflict injury on an officer or inmate (see People v. Rosario, 262 A.D.2d 802, 803, 693 N.Y.S.2d 648 [1999], lv. denied 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946 [1999] ).   Defendant testified that he used the object as a scraping tool in his work as a porter, it was not a practical weapon and he had no intent to use it as a weapon.   Two other inmates also testified that use of the object as a weapon was risible.   Since the object was available to the jury for examination, we discern no reason to reject the jury's assessment of the credibility of the witnesses or conclude that the jury “failed to give the evidence the weight it should be accorded” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];  see People v. Amato, 1 A.D.3d 713, 716, 766 N.Y.S.2d 735 [2003], lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362 [2004] ).

ORDERED that the judgment is affirmed.

ROSE, J.

MERCURE, J.P., PETERS and SPAIN, JJ., concur.