Opinion
699 KA 18-00288
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Lindell COX, Defendant-Appellant.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (ADAM W. KOCH OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, SPECIAL PROSECUTOR, NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., BUFFALO (BRIDGET RAHILLY STELLER OF COUNSEL), FOR RESPONDENT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (ADAM W. KOCH OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, SPECIAL PROSECUTOR, NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., BUFFALO (BRIDGET RAHILLY STELLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of promoting prison contraband in the first degree ( Penal Law § 205.25 [2] ), defendant contends that the evidence is legally insufficient to establish that he knowingly possessed the contraband in question, i.e., a weapon found in his shoe. We reject that contention. 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 makes, obtains or possesses any dangerous contraband" (id. ). "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when [the person] is aware that his [or her] conduct is of such nature or that such circumstance exists" (§ 15.05 [2] ). At trial, a correction officer testified that he observed defendant making suspicious movements toward his right shoe and alerted his supervisor, who intercepted defendant moments later and found a weapon under the padding of the shoe. Based upon that testimony, we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by [County Court] on the basis of the evidence at trial" ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Moreover, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant next contends that the court abused its discretion in denying his request to withdraw his waiver of the right to a jury trial. We reject that contention, particularly because he did not seek to withdraw the waiver until the morning of trial, when the prosecution witnesses were in court ready to testify (see People v. McQueen , 52 N.Y.2d 1025, 1026, 438 N.Y.S.2d 299, 420 N.E.2d 97 [1981] ; People v. McMillian , 158 A.D.3d 1059, 1061, 71 N.Y.S.3d 262 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ; People v. Anderson , 216 A.D.2d 257, 258, 629 N.Y.S.2d 223 [1st Dept. 1995], lv denied 86 N.Y.2d 840, 634 N.Y.S.2d 449, 658 N.E.2d 227 [1995] ).
Finally, the sentence is not unduly harsh or severe.