People v. Carter

• Citation: 90 A.D.3d 1159,934 N.Y.S.2d 586,2011 N.Y. Slip Op. 08849
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark CARTER, Appellant.
• Decision Date: 08 December 2011
• Court: New York Supreme Court Appellate Division

2011 N.Y. Slip Op. 08849
90 A.D.3d 1159
934 N.Y.S.2d 586

The PEOPLE of the State of New York, Respondent,
v.
Mark CARTER, Appellant.

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

Dec. 8, 2011.

[934 N.Y.S.2d 586]

David M. Kaplan, Penfield, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: PETERS, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.

STEIN, J.

[90 A.D.3d 1159] Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered September 20, 2010, upon a verdict convicting defendant of the crime of

[934 N.Y.S.2d 587]

promoting prison contraband in the first degree.

Defendant, while incarcerated in the Elmira Correctional Facility in Chemung County, was involved in an altercation with another inmate after returning from a medical “run.” Defendant was placed up against a wall as correction officers attempted to break up the fight. It was at that time that correction officer Kirby Bunnell observed that defendant's hand was clenched and ordered defendant to “drop it.” Defendant opened his hand, whereupon Bunnell saw and heard something fall and hit the floor. Bunnell placed his foot on top of the item and, within moments, retrieved a 7 to 7 1/2–inch, sharpened, clear Plexiglas shank. Defendant was indicted and convicted, after a jury trial, of one count of promoting prison contraband in the first degree. Defendant now appeals and we affirm.

Defendant's sole argument on appeal is that the verdict was against the weight of the evidence. As relevant here, “[a] person [90 A.D.3d 1160] is guilty of promoting prison contraband in the first degree when ... he [or she] knowingly and unlawfully ... possesses any dangerous contraband” (Penal Law § 205.25). Defendant's weight of the evidence argument centers around the proof that he knowingly possessed the shank. Defendant first contends that Bunnell's testimony is implausible that he did not notice the shank in defendant's possession while he was returning defendant to his cell or during the ensuing altercation until defendant was secured against a wall. We disagree. Since the shank—which was received in evidence at trial—was made of clear Plexiglas, the jury was entitled to infer that it was not noticeable prior to or during the fight because it was transparent and blended in with the background. In addition, considering Bunnell's testimony that defendant entered and then immediately exited his cell just...