Opinion
595 KA 17–00301
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Darius TURNER, Defendant–Appellant.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, SPECIAL PROSECUTOR, BATAVIA, NEW YORK PROSECUTORS TRAINING INSTITUTE, ALBANY (KAREN FISHER MCGEE OF COUNSEL), FOR RESPONDENT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, SPECIAL PROSECUTOR, BATAVIA, NEW YORK PROSECUTORS TRAINING INSTITUTE, ALBANY (KAREN FISHER MCGEE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him following a jury trial of promoting prison contraband in the first degree ( Penal Law § 205.25[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that his conviction of both crimes is not supported by legally sufficient evidence with respect to the element of possession. We reject that contention. At trial, a correction officer testified that, as he approached defendant and another inmate, both of whom were face down on the ground per his orders, he observed a pink object in defendant's curled, left hand. Defendant released the object from his hand when he complied with the correction officer's order to put his hands behind his back. The object was a State-issued toothbrush that had been shortened and melted into a point. We conclude that the above evidence, viewed in the light most favorable to the People (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), is legally sufficient to establish that defendant possessed dangerous contraband within the meaning of section 205.25(2) and possessed a weapon within the meaning of section 265.02(1) (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to the element of possession for each crime (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded" ( People v. Terborg, 156 A.D.3d 1320, 1321, 67 N.Y.S.3d 730 [4th Dept. 2017] ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.