                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 5, 2017                    106417
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MARK GAGNIER SR.,
                    Appellant.
________________________________


Calendar Date:   November 16, 2016

Before:   Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

                              __________


     Richard E. Cantwell, Plattsburgh, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Timothy
Blatchley of counsel), for respondent.

                              __________


Lynch, J.

      Appeal from a judgment of the County Court of Clinton
County (McGill, J.), rendered November 20, 2013, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree, criminal possession of
a controlled substance in the fifth degree, promoting prison
contraband in the first degree and conspiracy in the fourth
degree.

      On November 25, 2012, defendant, who was 53 years old,
visited with a 20-year-old female inmate at the Clinton County
Jail. The visitation room was under the supervision of Alyssa
Harkness, a correction officer who had processed the inmate's
intake two days earlier and learned that the inmate was
undergoing withdrawal symptoms from the use of heroin. At the
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end of the 10 minute visit, Harkness observed defendant kiss the
inmate on the mouth while looking directly at Harkness.
Suspecting that contraband had passed between the two, Harkness
requested that the inmate open her mouth. The inmate complied
and Harkness fished out a packet of what was, without dispute,
heroin. Based on this incident, defendant was charged in a
four-count indictment with criminal sale of a controlled
substance in the third degree, criminal possession of a
controlled substance in the fifth degree, conspiracy in the
fourth degree and promoting prison contraband in the first
degree. After a jury trial, defendant was convicted as charged
and thereafter sentenced to an aggregate prison term of six
years, with two years of postrelease supervision. Defendant
appeals.

      We affirm. Defendant maintains that the verdict is both
legally insufficient and against the weight of the evidence,
contending that the proof failed to establish that he ever
possessed the heroin relative to the sale, possession and
conspiracy charges, and that no showing was made that heroin
constitutes "dangerous contraband." Where the legal sufficiency
of a verdict is challenged, we view the evidence in a light most
favorable to the People and assess whether "there is a valid line
of reasoning and permissible inferences from which a rational
jury could have found the elements of the crime proved beyond a
reasonable doubt" (People v Reed, 22 NY3d 530, 534 [2014]
[internal quotation marks and citations omitted]). For a weight
of evidence review, when, as here, "a different finding would not
have been unreasonable, . . . [we] must, like the trier of fact
below, weigh the relative probative force of conflicting
testimony and the relative strength of conflicting inferences
that may be drawn from the testimony" (People v Bleakley, 69 NY2d
490, 495 [1987] [internal quotation marks and citation omitted]).

      To support a conviction for criminal sale of a controlled
substance in the third degree, the People were required to prove
that defendant "knowingly and unlawfully" sold "a narcotic drug,"
such as heroin (Penal Law § 220.39 [1]). A sale is defined as
"to sell, exchange, give or dispose of to another, or to offer or
agree to do the same" (Penal Law § 220.00 [1]). A conviction for
criminal possession of a controlled substance in the fifth degree
                              -3-                106417

required the People to prove that defendant "knowingly and
unlawfully" possessed "a controlled substance with intent to sell
it" (Penal Law § 220.06 [1]). For the conspiracy charge, the
People were required to demonstrate that, "with intent that
conduct constituting . . . a class B or class C felony be
performed, [defendant] agree[d] with one or more persons to
engage in or cause the performance of such conduct" (Penal Law
§ 105.10 [1]). A person may be convicted of conspiracy so long
as an overt act is alleged and shown to have been committed by
one of the conspirators in furtherance of a conspiracy (see Penal
Law § 105.20; People v Cochran, 140 AD3d 1198, 1199 [2016], lv
denied 28 NY3d 970 [2016]). Finally, the promoting prison
contraband charge required the People to demonstrate that
defendant "knowingly and unlawfully [introduced] any dangerous
contraband into [the] detention facility" (Penal Law § 205.25
[1]).

      The record shows that while the inmate was searched at
intake, neither she nor defendant were searched prior to the
visitation. Harkness testified that she observed the entire
visitation, noting that there was no physical contact between
defendant and the inmate at the start of the visit and that
defendant was continually watching Harkness throughout. At the
end of the visit, Harkness explained that they both stood up,
hugged and then defendant "opened his mouth and covered [the
inmate's] mouth." At this point Harkness intervened and obtained
the heroin packet from the inmate. Harkness and two other
correction officers testified that heroin is generally considered
to be dangerous contraband in prison, and the two officers added
that they had never heard of an inmate attempting to pass heroin
out of a prison during their extended years of service. The
inmate testified that she was sick from withdrawal symptoms and
confirmed that she would have used any heroin she obtained to
alleviate her sickness. She explained that she had briefly known
defendant, had never had a physical relationship with him and
that, during the visit, defendant told her that he would pass the
drugs through a parting kiss. For his part, defendant testified
that the inmate attempted to pass the heroin packet to him,
without forewarning, during an unplanned kiss.
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      Viewed in a light most favorable to the People, the jury
could readily conclude that it was defendant who passed the
heroin packet to the inmate, as discussed during their visit, and
not the other way around. As such, we find the evidence legally
sufficient to support the sale, possession and conspiracy
convictions. Considering the inmate's withdrawal illness, we
also find legally sufficient evidence for the jury to reasonably
conclude that the heroin packet constituted "dangerous
contraband" (Penal Law §§ 205.00 [4]; 205.25 [2]; see People v
Verley, 121 AD3d 1300, 1301 [2014], lv denied 24 NY3d 1221
[2015]). With due deference to the jury's assessment of witness
credibility, we further conclude that the verdict is not against
the weight of the evidence. Finally, given the absence of a
request, defendant failed to preserve his argument that County
Court erred in not giving a circumstantial evidence charge to the
jury (see People v Davis, 133 AD3d 911, 914 [2015]). In any
event, where, as here, there is both direct and circumstantial
evidence of a defendant's guilt, such a charge is not required
(see People v Hull, 125 AD3d 1099, 1101 [2015], affd 27 NY3d 1056
[2016]).

     Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
