           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1160
KA 14-02212
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CHARLES HOOD, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
S. SZALKOWSKI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered December 5, 2014. The judgment
convicted defendant, upon a jury verdict, of promoting prison
contraband in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     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]), defendant contends that the verdict is against the
weight of the evidence. We reject that contention. The evidence at
trial established that defendant, an inmate in state prison, knowingly
possessed the contraband in question, i.e., a razor blade melted into
a pen cap that was found in his sock. Thus, viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495).

     Defendant’s contention that Supreme Court erred in allowing the
People to introduce testimony that defendant made an inculpatory
statement, i.e., that the contraband was his, is unpreserved for our
review inasmuch as he failed to move to suppress that evidence (see
generally CPL 470.05 [2]), and we decline to review defendant’s
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     Finally, the sentence is not unduly harsh or severe.

Entered:    December 23, 2016                      Frances E. Cafarell
                                                   Clerk of the Court
