PEOPLE v. CARRALERO

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

The PEOPLE of the State of New York, Respondent, v. Batista CARRALERO, Appellant.

Decided: July 29, 2004

Before:  MERCURE, J.P., PETERS, MUGGLIN, ROSE and LAHTINEN, JJ. Stephen G. Court, Saratoga Springs, for appellant. John R. Trice, District Attorney, Elmira (Anna Guardino of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered October 28, 2002, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

Following a jury trial, defendant was convicted of the crime of promoting prison contraband in the first degree and sentenced as a second felony offender to a prison term of 2 1/212 to 5 years.   The conviction arose out of defendant's actions on August 30, 2001 while confined at the Southport Correctional Facility in Chemung County.   According to the testimony of Jodi Litwiler and Richard Portalatin, correction officers, defendant was placed in a metal detector chair after being questioned about a previous incident in the prison.   When the device indicated that metal was present on defendant's person, Portalatin, pursuant to Litwiler's instruction, conducted a strip search of defendant.   As defendant's clothing was being searched, defendant asked Portalatin what would happen if he handed over a “weapon.”   Before Portalatin responded, defendant threw a package onto the floor which contained pieces of a razor blade, partially secured with electrical tape.

 On appeal, defendant contends that his conviction is not supported by legally sufficient evidence and the verdict is against the weight of the evidence because the People failed to prove that the object he possessed constituted “dangerous” contraband, a necessary element of the crime of promoting prison contraband in the first degree (see Penal Law § 205.25 [2] ).1  He argues that because the recovered razor blade was too dull and small to be used as a weapon, at most, he should have been found guilty of promoting prison contraband in the second degree which does not contain the requirement that the contraband be “dangerous.”

Viewing the evidence in a light most favorable to the People, we find that it established, beyond a reasonable doubt, that defendant knowingly and unlawfully possessed dangerous contraband (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];  People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ).   We further conclude, based upon the credible evidence presented, that the verdict was not contrary to the weight of the evidence.   Defendant described the razor as a “weapon” prior to relinquishing it to Portalatin.   Additional testimony by the correction officers established the use to which the object could be put and the potential danger it posed to the safety and security of the facility (see People v. Bailey, 291 A.D.2d 667, 668, 737 N.Y.S.2d 696 [2002];  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];  People v. Mendoza, 244 A.D.2d 815, 816, 666 N.Y.S.2d 260 [1997], lv. denied 91 N.Y.2d 943, 671 N.Y.S.2d 723, 694 N.E.2d 892 [1998];  People v. Jones, 185 A.D.2d 470, 471, 585 N.Y.S.2d 872 [1992], lv. denied 80 N.Y.2d 975, 591 N.Y.S.2d 144, 605 N.E.2d 880 [1992] ).

We further find no error in County Court's failure to sua sponte submit the charge of promoting prison contraband in the second degree to the jury (see CPL 300.50[2];  People v. David, 255 A.D.2d 620, 621-622, 679 N.Y.S.2d 757 [1998];  see also People v. Douglas, 194 A.D.2d 408, 409, 599 N.Y.S.2d 230 [1993], lv. denied 82 N.Y.2d 717, 602 N.Y.S.2d 814, 622 N.E.2d 315 [1993] ).   Defendant did not request the submission of the lesser included charge and, even if he did, no reasonable view of the evidence could have supported its submission (see People v. Jones, supra at 471, 585 N.Y.S.2d 872;  see also People v. Livingston, 262 A.D.2d 786, 787, 693 N.Y.S.2d 641 [1999], lv. denied 94 N.Y.2d 881, 705 N.Y.S.2d 14, 726 N.E.2d 491 [2000] ).

 Defendant's ineffective assistance of counsel claim is similarly unavailing.   Viewing the evidence, the circumstances of the case and the law, in their totality and as of the time of defendant's representation, we find that he received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  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] ).   Counsel made appropriate pretrial motions, vigorously attempting to suppress the statement made by defendant to the correction officers.   At trial, counsel made appropriate evidentiary objections and zealously cross-examined witnesses.   As defendant failed to show the absence of a strategic or other legitimate explanation for what he contends was counsel's failure to request a charge on the lesser included offense (see People v. Alston, 298 A.D.2d 702, 704, 749 N.Y.S.2d 111 [2002], lvs. denied 99 N.Y.2d 554, 555, 754 N.Y.S.2d 206, 207, 784 N.E.2d 79, 80 [2002];  see also People v. Wright, 297 A.D.2d 875, 875, 747 N.Y.S.2d 397 [2002] ), we find that adequate and meaningful representation was provided.

Finally, having further failed to establish an abuse of discretion or extraordinary circumstances which would warrant our modification of his sentence (see People v. Hawes, 298 A.D.2d 706, 709, 750 N.Y.S.2d 132 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740 [2003] ), the sentence will remain undisturbed.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   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] ).

PETERS, J.

MERCURE, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.

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