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
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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. 
-4- 106417 

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