People v. Lekovic

• Citation: 200 A.D.3d 1501,161 N.Y.S.3d 412
• Decision Date: 30 December 2021
• Docket Number: 111744
• Parties: The PEOPLE of the State of New York, Respondent, v. Almir LEKOVIC, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1501

161 N.Y.S.3d 412

The PEOPLE of the State of New York, Respondent,

v.Almir LEKOVIC, Appellant.

111744

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

Calendar Date: November 16, 2021

Decided and Entered: December 30, 2021

Craig Meyerson, Peru, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Vivian Y. Joo of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered August 16, 2018, convicting defendant following a nonjury trial of the crimes of criminal possession of a weapon in the third degree and promoting prison contraband in the first degree.

Defendant was charged by indictment with one count of criminal possession of a weapon in the third degree and one count of promoting prison contraband in the first degree in connection with his alleged possession of a toothbrush that had been altered into a weapon while he was incarcerated at Clinton Correctional Facility in August 2017. Following a bench trial, defendant was convicted as charged. He was then sentenced, as a second felony offender, to concurrent prison terms of 2½ to 5 years, to run consecutively to the sentence he was then serving. Defendant appeals.

Defendant contends that the verdict was against the weight of the evidence based upon the People's purported failure to prove the element of possession.¹ "Inasmuch as a contrary result would not have been unreasonable, our task in conducting a weight of the evidence review is to ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ " ( People v. Mamadou, 172 A.D.3d 1524, 1524, 100 N.Y.S.3d 423 [2019], lv denied 33 N.Y.3d 1106, 106 N.Y.S.3d 670, 130 N.E.3d 1280 [2019], quoting People v. Myers, 163 A.D.3d 1152, 1153, 80 N.Y.S.3d 727 [2018], lv denied 32 N.Y.3d 1066, 89 N.Y.S.3d 121, 113 N.E.3d 955 [2018] ). A weight of the evidence review requires this Court to view evidence in a neutral light while giving deference to the credibility determinations made by the trier of fact (see People v. Hilton, 185 A.D.3d 1147, 1148, 126 N.Y.S.3d 242 [2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 302, 155 N.E.3d 795 [2020] ; People v. Mamadou, 172 A.D.3d at 1524, 100 N.Y.S.3d 423 ).

Corey McLeary, a correction officer at the facility, testified that, on the day of the incident, he was assigned to Upper F block when an altercation broke out between defendant and another incarcerated individual. McLeary asserted that he had seen the two men fighting with closed fists and saw defendant making "slashing-type motions"; he averred that the other incarcerated individual's motions were "[f]airly similar but more so like just fighting, closed fists." McLeary reported a level 2 emergency over his radio and monitored the situation until responders arrived. He denied having seen any object in either individual's hands. Kacey Roberts, also a correction officer, testified that when he responded to the incident, both individuals had been lying on the ground and were being handcuffed. Roberts stated that when officers helped defendant to his feet, he observed an altered "plastic, white toothbrush" on the ground that had been concealed underneath defendant. Roberts averred that a sharpened toothbrush would inflict injury in the form of a hole or penetration through the skin and constitutes dangerous contraband. On cross-examination, Roberts confirmed that he had drafted an interdepartmental communication wherein he reported that he recovered "a weapon from the floor [of] the company in the area of the incident" and that such communication was silent as to his allegation that the contraband was found underneath defendant when he was placed on his feet.

Matthew Moak, a correction officer at the facility, testified that, when he responded to the incident, he was informed that a fight had occurred between defendant and another incarcerated individual. Moak asserted that both individuals were restrained on the ground by the time he arrived. Moak stated that he then escorted the other incarcerated individual to the medical unit because he had been bleeding from one side of his face, which the medical unit determined to be a puncture wound that required sutures. Moak asserted that, on the way to the medical unit, he asked the other incarcerated individual if he had any contraband and the incarcerated individual stated that he had a "scalpel blade weapon in his pocket." Moak searched him and found a ceramic scalpel blade inside of a cardboard sheath in the incarcerated individual's pocket. Moak averred that the puncture wound on the other incarcerated individual's face was neither consistent with a fist nor with a scalpel blade. On cross-examination, Moak conceded that he had not seen any contraband in defendant's hand or near the ground where defendant had been restrained.

For his part, defendant testified that, on the day of the incident, he had been party to "a fist fight" with another incarcerated individual. Defendant asserted that the sharpened toothbrush "was nowhere near [him]" and denied having possessed the contraband at any point during the altercation. On cross-examination, defendant confirmed that he had previously been convicted of a felony.²

Viewing the evidence in a neutral light, we find that the factfinder could rationally infer that defendant possessed a weapon during the altercation with the other incarcerated individual (see People v. Robinson, 183 A.D.3d 1118, 1121, 124 N.Y.S.3d 468 [2020] ; People v. Mamadou, 172 A.D.3d at 1525, 100 N.Y.S.3d 423, lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 378, 152 N.E.3d 1180 [2020] ). Although no witness testified to having seen defendant holding or utilizing the sharpened toothbrush, "[c]onstructive possession can be shown when the defendant has a sufficient level of control over the area in which the contraband was found" ( People v. Maricle, 158 A.D.3d 984, 986, 71 N.Y.S.3d 211 [2018] [internal quotation marks and citations omitted]; see e.g. People v. Duran, 6 A.D.3d 809, 811, 775 N.Y.S.2d 390 [2004], lv denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200 [2004] ). Despite defendant's testimony that the sharpened toothbrush was nowhere near him and that he did not use it during the altercation, Roberts testified to the contrary, stating that defendant had the sharpened toothbrush concealed underneath him. Additionally, McLeary testified that defendant, while engaged in the altercation, was making "slashing-type motions." "[T]his presented a credibility determination for the [factfinder's] resolution, and the [factfinder] was free to reject defendant's version of the events" ( People v. Mamadou, 172 A.D.3d at 1525, 100 N.Y.S.3d 423 ). Moreover, the purported inconsistency between Robert's testimony and the interdepartmental communication – namely, that Robert's written report did not indicate that the contraband was found in the vicinity of defendant – was not so significant as to require the verdict to be set aside, and defendant highlighted this point to the factfinder during Robert's cross-examination, "thus allowing [the factfinder] to render a determination as to witness credibility" ( People v. Robinson, 183 A.D.3d at 1122, 124 N.Y.S.3d 468 [internal quotation marks and citations omitted]). Turning lastly to whether the subject contraband was dangerous, the factfinder could reasonably have found that the testimony about its dangerousness was accurate. Moreover, it has been observed that "even an item unable to render harm" can be considered dangerous contraband within the meaning of the Penal Law ( id. at 1122, 124 N.Y.S.3d 468 ). Accordingly, the verdict is supported by the weight of the evidence (see People v. Barzee, 190 A.D.3d 1016, 1019–1020, 138 N.Y.S.3d 718 [2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ).³

Defendant also contends that he was denied the right to the effective assistance of counsel based upon several alleged failings. "To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v. Barzee, 190 A.D.3d at 1021, 138 N.Y.S.3d 718 [internal quotation marks and citations omitted]). Defendant specifically argues that counsel failed to subpoena the...