People v. Crider

• Decision Date: 31 October 2019
• Docket Number: 109324
• Citation: 176 A.D.3d 1499,113 N.Y.S.3d 347
• Parties: The PEOPLE of the State of New York, Respondent, v. Joshua CRIDER, Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 1499
113 N.Y.S.3d 347

The PEOPLE of the State of New York, Respondent,
v.
Joshua CRIDER, Appellant.

109324

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

Calendar Date: September 5, 2019
Decided and Entered: October 31, 2019

Craig Meyerson, Peru, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: Garry, P.J., Lynch, Mulvey and Devine, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

176 A.D.3d 1499

Defendant was charged with promoting prison contraband in the first degree after a correction officer recovered a sharpened toothbrush from defendant's sock during a random pat frisk.

176 A.D.3d 1500

Following a trial, the jury convicted defendant of the sole count. County Court denied his CPL 330.30 motion to set aside the verdict and sentenced him, as a second felony offender, to a prison term of 2 to 4 years, to run consecutively to the sentence he was then serving. Defendant appeals.

The verdict is not against the weight of the evidence. Initially, defendant's legal sufficiency argument is unpreserved because he failed to renew his motion to dismiss at the close of his proof (see People v. Kolupa , 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 [2009] ; People v. Rice , 172 A.D.3d 1616, 1619, 101 N.Y.S.3d 506 [2019] ). Nevertheless, when reviewing defendant's challenge to the weight of the evidence, we must consider whether the People proved all the elements of the charged crime beyond a reasonable doubt (see People v. Hackett , 167 A.D.3d 1090, 1091, 89 N.Y.S.3d 429 [2018] ). As relevant here, "[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 ... possesses any dangerous contraband" ( Penal Law § 205.25[2] ). Defendant testified that he was confined in a state correctional facility, and he stipulated that the sharpened toothbrush constituted dangerous contraband. Although defendant testified that he did not possess that contraband, the jury obviously disbelieved that testimony and credited the testimony of the correction officer who explained how he recovered the item from defendant. According deference to the jury's credibility determinations, the verdict is not against the weight of the evidence (see People v. Davis , 105 A.D.3d 1095, 1096–1097, 962 N.Y.S.2d 739 [2013], lv denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ; People v. Camerena , 42 A.D.3d 814, 815, 839 N.Y.S.2d 635 [2007], lv denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007] ).

County Court did not err in denying defendant's motion to discharge a sworn juror. After a juror is sworn, that juror should not be removed unless, as relevant here, he or she "is grossly unqualified to serve in the case" ( CPL 270.35[1] ). To decide whether a juror is grossly unqualified, the trial court must conduct a

113 N.Y.S.3d 350

"probing and tactful inquiry" ( People v. Buford , 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ; see People v. Kuzdzal , 31 N.Y.3d 478, 486, 80 N.Y.S.3d 189, 105 N.E.3d 328 [2018] ) and exercise its discretion to determine whether the context of the entire colloquy reveals "an obviously partial state of mind" and "convincingly demonstrate[s] that the sworn juror cannot render an impartial verdict" ( People v. Spencer , 29 N.Y.3d 302, 309, 310, 56 N.Y.S.3d 494, 78 N.E.3d 1178 [2017] ; see People v. Rogers , 157 A.D.3d 1001, 1009, 69 N.Y.S.3d 384 [2018], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). "[T]he trial court is accorded great deference in deciding whether a juror is grossly unqualified, because it is in the best position to assess partiality in an allegedly biased juror" (

176 A.D.3d 1501

People v. Guy , 93 A.D.3d 877, 878, 939 N.Y.S.2d 613 [2012] [internal quotation marks and citations omitted], lv denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ).

The juror at issue approached County Court, after the jury had been sworn but before the trial itself had begun, to express his anxiety regarding his acquaintance with a potential witness that the juror knew from playing basketball in the community. When the court reassured the juror, based on a representation from the People, that this potential witness would not be called, the juror stated that he could be fair and impartial. The court noted that the juror's anxiety appeared to subside...