People v. Reed

• Decision Date: 26 November 1997
• Citation: 666 N.Y.S.2d 262,244 A.D.2d 782
• Parties: , 1997 N.Y. Slip Op. 10,446 The PEOPLE of the State of New York, Respondent v. Robert REED, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 262

666 N.Y.S.2d 262

244 A.D.2d 782, 1997 N.Y. Slip Op. 10,446

The PEOPLE of the State of New York, Respondent v. Robert REED, Appellant.

Supreme Court, Appellate Division,

Third Department.

Nov. 26, 1997.

Robert I. Reed, Attica, appellant in person.

James T. Hayden, District Attorney, Elmira, for respondent.

Before CARDONA, P.J., and MIKOLL, CASEY, YESAWICH and CARPINELLO, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered August 4, 1995, upon a verdict convicting defendant of two counts of the crime of promoting prison contraband in the first degree.

In September 1994, while an inmate at Elmira Correctional Facility in Chemung County, defendant was charged and found guilty of a violation of the standards of inmate behavior for illegally possessing a sharpened piece of metal encased in a pen and five sharpened pencils taped together. Subsequently, defendant was indicted for two counts of promoting prison contraband in the first degree based on the possession of these objects. Defendant moved to dismiss the indictment claiming double jeopardy. Defendant's motion was denied and, following a jury trial, he was convicted of both counts and sentenced as a second felony offender to concurrent prison terms of 2 1/2 to 5 years.

Initially, we find no merit to defendant's claim of double jeopardy. Prison disciplinary sanctions have been held not to form a basis for a claim of double jeopardy with respect to criminal charges that are based on the same acts that were the subject of the disciplinary charges (see, People v. Vasquez, 89 N.Y.2d 521, 529, 655 N.Y.S.2d 870, 678 N.E.2d 482). Simply stated, the double jeopardy clauses are not implicated in such a situation (id.).

We also find untenable defendant's contention that the verdict was not legally sufficient. A pen containing a sharpened piece of metal has previously been found to constitute dangerous contraband (see, People v. Miller, 132 A.D.2d 848, 518 N.Y.S.2d 59, lv. denied 70 N.Y.2d 958, 525 N.Y.S.2d 842, 520 N.E.2d 560). Furthermore, the pencils, although supplied by prison authorities, were not disqualified as dangerous contraband inasmuch as defendant "altered the item[s] so as to transform [them] into something that could be used as a weapon" (People v. Cheeks, 113 A.D.2d 974, 975, 493 N.Y.S.2d 518).

Finally, defendant's contention that County Court abused its discretion in imposing a time limit on jury selection was not preserved for appellate review (see, People v. Powell, 186 A.D.2d 54, 55, 588 N.Y.S.2d 145, lv. denied 81 N.Y.2d 765, 594 N.Y.S.2d 728, 610...