                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 23, 2014                    104884
________________________________

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

HAROLD G. VERLEY,
                    Appellant.
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Calendar Date:   September 8, 2014

Before:    McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                              __________


     Michelle E. Stone, Vestal, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Damian M.
Sonsire of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered January 13, 2012, upon a verdict
convicting defendant of the crimes of promoting prison contraband
in the first degree and criminal possession of a controlled
substance in the seventh degree.

      Defendant, an inmate at Elmira Correctional Facility, was
found unresponsive on the floor of his cell from an apparent drug
overdose. When a search of his cell revealed two small balloons
filled with heroin, he was charged with promoting prison
contraband in the first degree and criminal possession of a
controlled substance in the seventh degree. Defendant was
convicted of both counts. He now appeals, challenging the
verdict convicting him of promoting prison contraband in the
                              -2-                104884

first degree as based on legally insufficient evidence and
against the weight of the evidence on the ground that the heroin
found in his cell does not constitute "dangerous contraband"
(Penal Law §§ 205.00 [4]; 205.25 [2]).

      "[T]he test for determining whether an item is dangerous
contraband is whether its particular characteristics are such
that there is a substantial probability that the item will be
used in a manner that is likely to cause death or other serious
injury, to facilitate an escape, or to bring about other major
threats to a detention facility's institutional safety and
security" (People v Finley, 10 NY3d 647, 657 [2008] [emphasis
omitted]; accord People v Cash, 95 AD3d 1374, 1375 [2012], lv
denied 19 NY3d 958 [2012]). Here, the People presented evidence
that when defendant was found on the floor of his cell, he was
unresponsive, with shallow breathing, constricted pupils and low
oxygen saturation levels, all signs that are indicative of a drug
overdose. Narcan was administered to reverse the effects of the
overdose and defendant was transported to a hospital, where he
remained for 24 hours and received an additional dose of Narcan.
Defendant testified that he obtained the heroin from another
inmate and that his intent was to use it to commit suicide.

      As noted by County Court, contraband will be considered
dangerous under the statutory definition as long as it endangers
the safety of "any person" (Penal Law § 205.00 [4]). Inasmuch as
the heroin possessed by defendant clearly endangered his own
safety, and he freely admitted that he used it to harm himself,
there was legally sufficient evidence from which the jury could
reasonably conclude that it constituted dangerous contraband and
we do not find that the verdict was against the weight of the
evidence (see People v Cooper, 67 AD3d 1254, 1256-1257 [2009], lv
denied 14 NY3d 799 [2010]; People v Watson, 162 AD2d 1015, 1015
[1990], appeal dismissed 77 NY2d 857 [1991]).

     McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
                        -3-                  104884

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
