

People v Pastore (2017 NY Slip Op 03609)





People v Pastore


2017 NY Slip Op 03609


Decided on May 4, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 4, 2017

Sweeny, J.P., Gische, Kahn, Gesmer, JJ.


3897 5477/12

[*1]The People of the State of New York, Respondent,
vRobert Pastore, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.

Judgment, Supreme Court, New York County, (Roger S. Hayes, J.), rendered July 17, 2013, convicting defendant, after a jury trial, of promoting prison contraband in the first degree, and sentencing him to a determinate term of 1½ to 4½ years, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2009]). There is no basis for disturbing the jury's credibility determinations. There was ample evidence that defendant knowingly possessed the scalpel that was discovered in his cell during a routine search, given, among other things, that it was a single-occupancy cell, inmates were not permitted to go other inmate's cells, and there was no evidence that someone other than defendant occupied the cell between its last search and the search that revealed the contraband. The fact that no other inmate was housed in this cell between the two searches was established by a combination of the specific recollection of a Department of Correction captain and evidence of the Department's procedures in searching cells at the time of a transfer of inmates.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 4, 2017
CLERK


