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

The PEOPLE of the State of New York, Respondent, v. Arthur MONTGOMERY, Appellant.

Decided: June 24, 2004

Before:  CARDONA, P.J., CREW III, MUGGLIN, ROSE and LAHTINEN, JJ. Joseph Nalli, Fort Plain, for appellant. John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered May 15, 2000, upon a verdict convicting defendant of two counts of the crime of promoting prison contraband in the first degree.

Defendant, a prison inmate, was charged in an indictment with two counts of promoting prison contraband in the first degree.   At trial, two correction officers testified that after defendant set off a walk-through metal detector, he was searched and found to have two six-inch sharpened metal shanks wrapped in a sock in his pants pocket.   In his testimony, defendant denied setting off the metal detector or having the shanks in his possession and asserted that the correction officers lied in retaliation for his earlier written complaints.   In summation, defense counsel questioned why other officers who were present at the time of the incident were not identified and called as witnesses, suggesting again that defendant had been set up or framed.   The prosecutor, in turn, commented on this by pointing out that there had been no testimony that any other officers had observed the incident and suggesting that if any such officers had been called, their testimony would have been the same as that of the officers who did testify.   Defendant was convicted as charged and sentenced as a second felony offender to concurrent prison terms of 2 1/212 to 5 years, to run consecutively to the sentence he was then serving.   On appeal, defendant asserts that his conviction is against the weight of the evidence, the prosecutor's comments deprived him of a fair trial and his sentence is unduly harsh and an abuse of discretion.

 We find that the verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   One correction officer testified as to the detection and discovery of the shanks on defendant's person.   The other officer who witnessed the incident confirmed the first officer's account.   The jury's decision to accept the officers' testimony and discredit defendant's account was not “manifestly erroneous [or] plainly unjustified by the evidence” and will not be disturbed (People v. Corporan, 169 A.D.2d 643, 643, 564 N.Y.S.2d 775 [1991], lv. denied 77 N.Y.2d 959, 570 N.Y.S.2d 493, 573 N.E.2d 581 [1991];  see People v. Love, 307 A.D.2d 528, 530, 762 N.Y.S.2d 162 [2003], lv. denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003] ).

 While it is improper for the prosecutor to refer to matters not in evidence by suggesting during summation that, if called to testify, any other correction officer observing the incident would have testified the same as the two officers who did testify (see People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ), we view the comment here in the context of defense counsel's summation, which asked the jury to consider whether no other officers were called because they might support defendant's account of the incident and show that he was framed (see People v. Hughes, 280 A.D.2d 694, 696-697, 720 N.Y.S.2d 586 [2001], lv. denied 96 N.Y.2d 801, 726 N.Y.S.2d 379, 750 N.E.2d 81 [2001];  People v. Corniel, 258 A.D.2d 812, 815, 686 N.Y.S.2d 159 [1999], lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099 [1999];  People v. Guillebeaux, 229 A.D.2d 399, 645 N.Y.S.2d 59 [1996], lv. denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247 [1996] ).   This comment, even when considered together with the prosecutor's second remark, which asked the jury to consider whether defendant's stated dislike of prison could be a motive for him to testify falsely, did not rise to the level of prejudicing the jury (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 [1993] ), and does not establish a “flagrant and pervasive pattern of prosecutorial misconduct,” warranting a new trial (People v. Demming, 116 A.D.2d 886, 887, 498 N.Y.S.2d 203 [1986], lv. denied 67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118 [1986];  see People v. Ciborowski, 302 A.D.2d 620, 622-623, 755 N.Y.S.2d 113 [2003], lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 [2003] ).

 Finally, given defendant's lengthy criminal record, which includes the crimes of robbery, burglary and murder, we reject his contention that he should have received the minimum concurrent prison terms of 2 to 4 years (see Penal Law § 70.06[3][d];  [4][b] ).  We see no abuse of discretion or extraordinary circumstances warranting modification here (see People v. Brodus, 307 A.D.2d 643, 644, 763 N.Y.S.2d 363 [2003], lv. denied 100 N.Y.2d 618, 767 N.Y.S.2d 401, 799 N.E.2d 624 [2003];  People v. Hines, 277 A.D.2d 504, 505, 716 N.Y.S.2d 613 [2000], lv. denied 96 N.Y.2d 759, 725 N.Y.S.2d 286, 748 N.E.2d 1082 [2001] ).

ORDERED that the judgment is affirmed.



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