PEOPLE v. SHARPE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Tim D. SHARPE, Defendant-Appellant.

Decided: June 14, 2002

PRESENT:  PINE, J.P., WISNER, KEHOE, GORSKI, and LAWTON, JJ. V. Michael Liccione, Whitesboro, for Defendant-Appellant. Michael A. Arcuri, District Attorney, Utica (Steven G. Cox of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him following a jury trial of promoting prison contraband in the first degree (Penal Law § 205.25[2] ), defendant contends that the verdict is against the weight of the evidence.   We disagree.   The People established that, during a routine sweep of defendant's jail cell, a guard observed that the caulking on the window of the cell had been removed from the window and reattached with toothpaste.   When the guard removed the caulking, he observed a “hole punched to the outside” of the window.   Directly outside the window, he observed several metal objects that could be used as weapons, and he confiscated those objects as “dangerous contraband.”   The People established that defendant had been the exclusive occupant of that cell for seven months prior to discovery of the contraband.   Moreover, by defendant's admission, there had been approximately six prior unannounced searches of the cell.   No contraband was discovered during those searches, nor did the jail guards observe any tampering with the window.   The jury did not fail to give the evidence the weight it should be accorded on the issue of defendant's knowing and unlawful possession of the contraband (see People v. Thompson, 279 A.D.2d 642, 719 N.Y.S.2d 885;  People v. Livingston, 262 A.D.2d 786, 787-788, 693 N.Y.S.2d 641, lv. denied 94 N.Y.2d 881, 705 N.Y.S.2d 14, 726 N.E.2d 491;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant further contends that he was denied a fair trial by juror misconduct based on the alleged failure of the juror to disclose the fact that he previously had worked with defendant and defendant's brother.   Even assuming, arguendo, that the juror failed to disclose that information, we conclude that defendant failed to sustain his burden of demonstrating that the juror thereby engaged in improper conduct out of the presence of County Court that may have affected a substantial right of defendant and that was not known to defendant before the verdict was rendered (see CPL 330.30[2] ).   In any event, the record establishes that the juror did not fail to disclose the fact that he previously had worked with defendant and defendant's brother.   Instead, it was defendant who, according to the evidence adduced at the CPL article 330 hearing, failed to confirm the juror's revelation and failed to disclose, until after the verdict (see People v. Cipriani, 267 A.D.2d 595, 596, 701 N.Y.S.2d 127, lv. denied 95 N.Y.2d 833, 713 N.Y.S.2d 140, 735 N.E.2d 420, cert. denied 531 U.S. 1092, 121 S.Ct. 815, 148 L.Ed.2d 700), his prior relationship with the juror.   Under the circumstances, the juror may not be charged with “improper conduct * * * which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (330.30[2];  see People v. Brown, 278 A.D.2d 920, 718 N.Y.S.2d 688, lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214;  see also People v. Moon, 219 A.D.2d 817, 818, 631 N.Y.S.2d 958, lv. denied 87 N.Y.2d 905, 641 N.Y.S.2d 235, 663 N.E.2d 1265;  People v. Richardson, 185 A.D.2d 1001, 1002, 587 N.Y.S.2d 947, lv. denied 80 N.Y.2d 976, 591 N.Y.S.2d 145, 605 N.E.2d 881).

Defendant's claims of ineffective assistance of counsel concern matters outside the record on appeal and thus are neither the proper subject of a CPL article 330 motion nor reviewable on this direct appeal (see People v. Vann, 288 A.D.2d 876, 877, 732 N.Y.S.2d 615, lv. denied 97 N.Y.2d 709, 739 N.Y.S.2d 111, 765 N.E.2d 314;  People v. Drumgoole, 234 A.D.2d 888, 889, 652 N.Y.S.2d 443, lv. denied 89 N.Y.2d 1011, 658 N.Y.S.2d 249, 680 N.E.2d 623).

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

MEMORANDUM: