PEOPLE v. SANTIAGO

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Ray SANTIAGO, Defendant-Appellant.

Decided: May 25, 2006

SULLIVAN, J.P., WILLIAMS, GONZALEZ, CATTERSON, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Hae Jin Liu of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Margaret Clancy, J.), rendered October 3, 2003, convicting defendant, after a nonjury trial, of two counts of promoting prison contraband in the first degree, and sentencing him to concurrent terms of 2 to 4 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the court's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The evidence supports the conclusion that defendant knowingly possessed the prison contraband that was in his pocket (see People v. Reisman, 29 N.Y.2d 278, 285-286, 327 N.Y.S.2d 342, 277 N.E.2d 396 [1971], cert. denied 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582 [1972] ).

 Defendant's claim that the People made improper use of his pretrial silence is unpreserved because, in this regard, he made only a general objection during the officer's testimony, and no objection at all during the People's summation.   We decline to review this claim in the interest of justice.   Were we to review this claim, we would find that any error was harmless, particularly in this nonjury trial where the court is considered capable of disregarding such evidence (see People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ).