People v. Andrade

• Decision Date: 09 May 2019
• Docket Number: 109644
• Citation: 100 N.Y.S.3d 408,172 A.D.3d 1547
• Parties: The PEOPLE of the State of New York, Respondent, v. Christian ANDRADE, Also Known as Christopher Ruiz, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1547

100 N.Y.S.3d 408

The PEOPLE of the State of New York, Respondent,

v.Christian ANDRADE, Also Known as Christopher Ruiz, Appellant.

109644

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

Decided and Entered: May 9, 2019

Calendar Date: March 22, 2019

Mark Diamond, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.Appeal from a judgment of the County Court of Clinton County (Bruno, J.), rendered July 31, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and promoting prison contraband in the first degree.

Defendant, an inmate at Clinton Correctional Facility, was charged by indictment with criminal possession of a weapon in the third degree and promoting prison contraband in the first degree stemming from defendant leaving his cell with a two-foot long piece of wood, which he put under his shirt in the waistband of his pants. After a Huntley hearing, County Court denied defendant's motion to suppress an oral statement he made to a correction officer at that time. Following a jury trial, defendant was convicted as charged and sentenced, as a second felony offender, to a prison term of 2 ½ to 5 years on each count, with the sentences to run concurrently with each other but consecutively to the sentence that defendant was currently serving. Defendant appeals, and we affirm.

Defendant challenges the legal sufficiency of the evidence and also contends that the verdict was contrary to the weight of the evidence. "When reviewing a legal sufficiency claim, we must determine whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that each and every element of the charged crime[s][has] been proven beyond a reasonable doubt" ( People v. Shamsuddin, 167 A.D.3d 1334, 1334, 90 N.Y.S.3d 376 [2018] [internal quotations marks and citations omitted], lv denied 33 N.Y.3d 953, 100 N.Y.S.3d 151, 123 N.E.3d 810, 2019 WL 1575225 [Mar. 11, 2019] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant's legal sufficiency challenge is only preserved as to his conviction for criminal possession of a weapon in the third degree because he did not set forth any arguments regarding promoting prison contraband in the first degree in his motion for a trial order of dismissal (see People v. Crippen, 156 A.D.3d 946, 950, 67 N.Y.S.3d 320 [2017] ); however, "[w]e will nevertheless evaluate whether the elements of the charged crimes were proven beyond a reasonable doubt upon our weight of the evidence review" ( People v. Vickers, 168 A.D.3d 1268, 1269, 92 N.Y.S.3d 473 [2019] ; see People v. Crippen, 156 A.D.3d at 950, 67 N.Y.S.3d 320 ). "A weight of the evidence review requires us first to decide whether, based on all the credible evidence, a different finding would not have been unreasonable, and then, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Nunes, 168 A.D.3d 1187, 1188, 90 N.Y.S.3d 694 [2019] ; see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

As relevant here, a person is guilty of criminal possession of a weapon in the third degree when "[s]uch person commits the crime of criminal possession of a weapon in the fourth degree ... and has been previously convicted of any crime" ( Penal Law § 265.02[1] ). A person is guilty of criminal possession of a weapon in the fourth degree when "[h]e or she possesses ... [a] dangerous or deadly instrument or weapon with intent to use the same unlawfully against another" ( Penal Law § 265.01[2] ). A person is guilty of promoting prison contraband in the first degree when, "[b]eing a person confined in a detention facility, he [or she] knowingly and unlawfully makes, obtains, or possesses any dangerous contraband" ( Penal Law § 205.25[2] ). Contraband is defined as "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order" ( Penal Law § 205.00[3] ), whereas dangerous contraband is defined as "contraband which 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] ).

At trial, Benjamin Darrah, a correction officer with the Department of Corrections and Community Supervision (hereinafter DOCCS), testified that on the day of the incident, he was working as a yard officer at Clinton Correctional Facility, which entailed conducting random pat frisks as inmates went out to the yard. After defendant was randomly selected for a pat frisk by another correction officer, defendant walked toward the frisking area where Darrah was located and Darrah observed that defendant was walking with an odd gait. When defendant reached Darrah, Darrah asked him why he was walking like that, and defendant told him that he had an object "shoved down the front side of [the] waistband of his pants." Darrah asked defendant what the object was, and defendant stated that it was a dough roller, and when Darrah asked defendant why he was carrying it, defendant told him it was for protection. Darrah conducted the pat frisk and recovered the object, which he described as an "approximately two-foot-long piece of club – or piece of wood [that] looked like a club."¹

Darrah explained to the jury DOCCS rules and regulations regarding contraband and dangerous contraband and gave examples of each. Darrah stated that he considers the object found on defendant to be dangerous contraband because it posed a security risk to the individuals within the facility. Darrah testified that the piece of wood would not be allowed in any area of the facility, and that if he came across that object or something like it in a cell, he would confiscate it. Darrah admitted that his treatment of the object might be different than that of another correction officer. Darrah also explained that Clinton Correctional Facility is a cooking facility that allows inmates to go out to the prison yard and cook on wood stoves. Darrah testified that inmates are allowed to bring cooking implements out to the yard, but that an object is not considered a cooking implement if an inmate can make a weapon out of it. He also explained that cooking implements cannot be brought back and forth, so once something is in the yard, it has to stay there. Darrah also explained that, if an inmate brought an object into the yard, it had to be carried in the inmate's hands or in a see-through net bag. When asked whether rolling pins were common to have in the facility, Darrah said they were not, and that he had never seen an inmate with one.

Justin St. Louis, a sergeant with DOCCS, testified at trial that he came into contact with defendant when Darrah reported to him that defendant was attempting to bring dangerous contraband out to the yard. St. Louis stated that the object that defendant possessed was approximately 22 ¼ to 22 ½ inches long, about 1 ¼ inches in diameter and looked like a wooden shovel or rake handle. St. Louis testified that the object was unauthorized and might or might not be dangerous, depending on the situation where it was found. St. Louis explained that many different items can be considered dangerous contraband, including a bludgeon-type weapon. St. Louis also explained that, according to DOCCS rules and regulations, the object found on defendant would be considered contraband, that an inmate would not be allowed to carry any such object and that, if St. Louis came across the object in an inmate's cell, he would confiscate it.

Defendant also testified and admitted to possessing the object, which he described as a "rolling pin" or "dough roller." Defendant explained that, on the day of the incident, he planned to go to the yard to make a pizza with another inmate. Defendant explained that he was in his cell and had fallen asleep when he heard his cell door opening, which meant that it was time to go to the yard. Defendant testified that he grabbed a sweater and scrambled to the door, only realizing as his cell door was closing that he forgot the rolling pin. Defendant was able to reach through the bars of his cell to get the rolling pin, but could not reach his net bag. Defendant explained that he put the rolling pin under his shirt because he did not want to get sent back to his cell due to not having the rolling pin in his net bag, which he knew was required for any items that were going to be brought outside into the yard. Defendant also testified that, when he was randomly selected for a pat frisk, he made it clear to the correction officers around him that he had the rolling pin. Defendant testified that he removed it from his shirt and gave it to the correction officers. Defendant testified that he did not tell Darrah or anyone else that the rolling pin was a weapon or that he intended to use it for protection. Defendant also testified that, prior to this incident, he had brought the rolling pin into the yard approximately 20 to 30 times without issue. Defendant also stated that the rolling pin was visible from his cell and that he never tried to hide it, even when his cell was searched.

First, there can be no dispute that defendant knowingly possessed the object, as he admitted to said possession, and also admitted that he knew he was not supposed to have the object without carrying it in a net bag. Therefore, our analysis turns on whether there was legally sufficient evidence that the object was a "dangerous or deadly instrument or weapon" and whether defendant had the "intent to use the same unlawfully against another" ( Penal Law § 265.01[2] ). Darrah testified that the nearly...