PEOPLE v. SEVILLA ROSALES (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered May 5, 2017, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

Defendant, an incarcerated individual at Great Meadow Correctional Facility, was charged by indictment with promoting prison contraband in the first degree stemming from an incident wherein he allegedly possessed a metal shank during an altercation with a fellow incarcerated individual.  Following a jury trial, defendant was convicted as charged and sentenced, as a second felony offender, to a prison term of 31/212 to 7 years, to be served consecutively to the sentence he was currently serving.  Defendant appeals.

The sole issue defendant raises on appeal concerns alleged improper statements by the People during summation that defendant contends constituted prosecutorial misconduct.  However, defendant acknowledges that defense counsel failed to contemporaneously object to those statements at trial, rendering them unpreserved (see People v. Harris, 203 A.D.3d 1320, 1328–1329, 164 N.Y.S.3d 320 [2022];  People v. Lyons, 200 A.D.3d 1222, 1226, 157 N.Y.S.3d 594 [2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 723, 181 N.E.3d 1151 [2022]).  Instead, defendant contends that defense counsel's failure to timely object to the People's remarks constituted ineffective assistance of counsel warranting a new trial (see People v. Andrade, 172 A.D.3d 1547, 1554, 100 N.Y.S.3d 408 [2019], lvs denied 34 N.Y.3d 928, 937, 109 N.Y.S.3d 713, 715, 133 N.E.3d 415, 418 [2019];  People v. Cooper, 134 A.D.3d 1583, 1586, 22 N.Y.S.3d 751 [2015]).

It is well established that a claim of ineffective assistance of counsel must fail if “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];  see People v. Taylor, 156 A.D.3d 86, 91, 64 N.Y.S.3d 714 [2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018]).  “ ‘In order to sustain a claim of ineffective assistance of counsel, New York courts must examine the trial as a whole to determine whether [the] defendant was afforded meaningful representation’ ” (People v. King, 27 N.Y.3d 147, 158, 31 N.Y.S.3d 402, 50 N.E.3d 869 [2016] [brackets omitted], quoting People v. Schulz, 4 N.Y.3d 521, 530, 797 N.Y.S.2d 24, 829 N.E.2d 1192 [2005]).  “The task of a reviewing court is to consider the seriousness of the errors in their totality” (People v. Wright, 25 N.Y.3d 769, 779, 16 N.Y.S.3d 485, 37 N.E.3d 1127 [2015] [internal quotation marks, brackets and citation omitted]).

Based upon our review of the record, we are satisfied that defendant was provided meaningful representation (see People v. Garcia, 203 A.D.3d 1228, 1231, 163 N.Y.S.3d 321 [2022];  People v. Rudge, 185 A.D.3d 1214, 1217, 126 N.Y.S.3d 247 [2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020]).  The testimony at trial revealed that defendant engaged in a physical altercation with another incarcerated individual immediately upon his release from a 30–day stint in keep lock.  A correction officer witnessed the altercation and testified that she observed defendant making slashing motions using a flattened sharp piece of metal with a handle, which she identified as a shank.¹  The officer also testified that she ordered defendant and the other individual to stop the fight, and that defendant dropped the shank upon complying with her directive.  Further, a correctional facility nurse testified that she had treated the individual involved in the altercation with defendant, and that the wounds that the individual had suffered were consistent with injuries from a “cutting type weapon.”

During summation, the People stated that, while in keep lock for 30 days, “defendant had time for 23 hours a day to sit and stew, to plot his revenge for the actions that actually put him in [keep lock].”  The People then reiterated that “defendant had a whole month to plan his revenge for whatever action put him in [keep lock].”  We find that these remarks were improper, as the record reveals that there was no evidence put forth at trial establishing the reason that defendant had been placed in keep lock;  however, we do not find them sufficiently egregious to warrant a new trial (see People v. Collins, 167 A.D.3d 1493, 1497, 90 N.Y.S.3d 759 [2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019];  People v. Sorrell, 108 A.D.3d 787, 793–794, 969 N.Y.S.2d 198 [2013], lv denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014];  People v. Johnson, 49 A.D.3d 557, 557, 855 N.Y.S.2d 549 [2008], lv denied 10 N.Y.3d 865, 860 N.Y.S.2d 491, 890 N.E.2d 254 [2008]).²

Importantly, defendant was convicted of promoting prison contraband in the first degree, which required the People to prove beyond a reasonable doubt that defendant, “[b]eing a person confined in a detention facility, ․ knowingly and unlawfully ma[de], obtain[ed], or possess[ed] any dangerous contraband” (Penal Law § 205.25[2]).  Thus, the People's statements attributing a motive to his involvement in the altercation, while improper, did not improperly prejudice defendant's theory of the case, which was largely premised on establishing a lack of opportunity to craft or possess the shank (see People v. King, 27 N.Y.3d at 159, 31 N.Y.S.3d 402, 50 N.E.3d 869;  People v. Wragg, 26 N.Y.3d 403, 411, 23 N.Y.S.3d 600, 44 N.E.3d 898 [2015];  People v. Fick, 167 A.D.3d 1484, 1486, 90 N.Y.S.3d 421 [2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019];  People v. Lawrence, 141 A.D.3d 828, 833–834, 35 N.Y.S.3d 742 [2016], lvs denied 28 N.Y.3d 1071, 1073, 47 N.Y.S.3d 229, 232, 69 N.E.3d 1025, 1028 [2016]).  Nor did such comments have any appreciable impact on the credibility of the correction officer's testimony that she directly observed defendant possess the shank during the altercation with the other incarcerated individual (see People v. Nicholson, 26 N.Y.3d 813, 832, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016];  People v. Lombardo, 200 A.D.3d 1479, 1481, 159 N.Y.S.3d 238 [2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 34, 184 N.E.3d 855 [2022];  People v. Hartle, 159 A.D.3d 1149, 1153–1154, 72 N.Y.S.3d 639 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018]).

Altogether, we do not find that the People's improper remarks, taken as a whole, were so “pervasive or flagrant as to require a reversal” on prosecutorial misconduct grounds (People v. McCall, 75 A.D.3d 999, 1002, 906 N.Y.S.2d 394 [2010], lv denied 15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010];  see People v. McKee, 174 A.D.3d 1444, 1445–1446, 105 N.Y.S.3d 747 [2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 654, 137 N.E.3d 24 [2019];  People v. Shepard, 171 A.D.3d 951, 952, 98 N.Y.S.3d 300 [2019];  People v. Harris, 162 A.D.3d 1240, 1243–1244, 79 N.Y.S.3d 336 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018];  see also People v. Pendergraph, 170 A.D.3d 1630, 1631–1632, 96 N.Y.S.3d 805 [2019]).³  Accordingly, it cannot be said that defense counsel was ineffective for failing to object to the People's remarks on summation, considering counsel's overall representation (see People v. Williams, 29 N.Y.3d 84, 89–90, 52 N.Y.S.3d 266, 74 N.E.3d 649 [2017];  People v. Tucker, 195 A.D.3d 1547, 1549, 150 N.Y.S.3d 443 [2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 437 [2021];  People v. Cotton, 184 A.D.3d 1145, 1148, 126 N.Y.S.3d 287 [2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Another correction officer testified that the shank recovered from defendant constituted dangerous contraband pursuant to Department of Corrections and Community Supervision rules and regulations.

2.   As noted by County Court, defense counsel stated during opening argument that defendant was in keep lock because he had been assaulted by another incarcerated individual, but no evidence was presented at trial establishing this fact.

3.   On his CPL 330.30 motion, defendant also pointed to a separate remark by the People during summation which alluded to the fact that there was only one proper “verdict that the law demand[ed] that [the jury] return in this case.”  While defendant does not raise any contention concerning this remark on his appeal, we have considered same in the context of the totality of the People's conduct at trial and our conclusion is unchanged (see People v. Smith, 150 A.D.3d 1664, 1666–1667, 55 N.Y.S.3d 559 [2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017]).

McShan, J.

Egan Jr., J.P., Clark, Reynolds Fitzgerald and Fisher, JJ., concur.