People v. Carralero, 9 A.D.3d 790 (N.Y. App. Div. 2004). · Go Syfert
People v. Carralero, 9 A.D.3d 790 (N.Y. App. Div. 2004). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Mousaw (nyappdiv, 2024-12-26)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 19 distinct citers.
discussed Cited as authority (rule) People v. Mousaw
N.Y. App. Div. · 2024 · confidence medium
Inasmuch as defendant did not request this charge or object to the jury instructions as given, this issue is not preserved for appellate review ( see People v Dorsey , 151 AD3d 1391, 1395 [3d Dept 2017], lv denied 30 NY3d 949 [2017]; People v Carralero , 9 AD3d 790, 791 [3d Dept 2004], lv denied 4 NY3d 742 [2004]).
discussed Cited as authority (rule) People v. Robinson
N.Y. App. Div. · 2020 · confidence medium
The jury, upon viewing the item in evidence, could reasonably have found that the testimony about its dangerousness was accurate; in any event, even an item unable to render harm has been considered to be dangerous contraband ( see People v Silcox-Mix , 159 AD3d at 1061 [a fabricated "soap gun" made from bars of soap, notebook paper and carbon paper "would likely have led to the use of deadly force to protect against the apparent threat posed by the presence of a gun"]; People v Carralero , 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]).
discussed Cited as authority (rule) People v. Bryson
N.Y. App. Div. · 2017 · confidence medium
Although defendant testified on his own behalf that he never possessed an X-acto blade and that he had been “set up,” we find that the jury could easily conclude that defendant possessed the blades clearly depicted on the X ray and that such blades constitute “[d]angerous contraband” (Penal Law § 205.00 [4]; see People v Johnson, 24 AD3d 803, 804 [2005]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]; People v Rosario, 262 AD2d 802, 803 [1999], lv denied 93 NY2d 1026 [1999]).
discussed Cited as authority (rule) People v. Davey
N.Y. App. Div. · 2015 · confidence medium
Viewing the evidence in the light most favorable to defendant (see People v Johnson, 45 NY2d 546, 549 [1978]), we conclude that there is no reasonable view of the evidence that defendant possessed contraband but not dangerous contraband (see People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]; see generally People v Glover, 57 NY2d 61, 63 [1982]).
cited Cited as authority (rule) People v. Cash
N.Y. App. Div. · 2012 · confidence medium
People v Brown, 75 AD3d 655, 656 [2010]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]).
cited Cited as authority (rule) People v. Cash
N.Y. App. Div. · 2012 · confidence medium
People v Brown, 75 AD3d 655, 656 [2010]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]).
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2010 · confidence medium
Under the totality of the circumstances and being mindful that we “must avoid confusing True ineffectiveness with mere losing tactics and according undue significance to retrospective analysis’ ” (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Baldi, 54 NY2d at 146 ), we find that defendant received meaningful representation at both the trial and appellate levels (see People v Benevento, 91 NY2d at 712 ; People v Lopez-Aguilar, 64 AD3d 1037, 1038 [2009]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]).
discussed Cited as authority (rule) People v. Breedlove
N.Y. App. Div. · 2009 · confidence medium
We see no abuse of discretion or extraordinary circumstances warranting modification of any aspect of his sentence (see People v Carralero, 9 AD3d 790, 792 [2004], lv denied 4 NY3d 742 [2004]), including the monetary fine imposed.
discussed Cited as authority (rule) People v. Aponte
N.Y. App. Div. · 2009 · confidence medium
Viewing the evidence in the light most favorable to the People (see People v Brown, 46 AD3d 949, 951 [2007], lv denied 10 NY3d 808 [2008]), the evidence presented—even without the testimony comparing the contraband with similar items—could certainly lead a rational person to conclude that the item was dangerous (see People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]).
discussed Cited as authority (rule) People v. Sidney
N.Y. App. Div. · 2008 · confidence medium
Viewing this evidence in a light most favorable to the People, we conclude that it provided a valid line of reasoning and permissible inferences to support the jury’s verdict and establish, beyond a reasonable doubt, that defendant knowingly and unlawfully possessed dangerous contraband (see People v Finley, 10 NY3d 647, 656-657 [2008]; People v Camerena, 42 AD3d 814, 815 [2007], lv denied 9 NY3d 921 [2007]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]; People v Rosario, 262 AD2d 802, 803 [1999], lv denied 93 NY2d 1026 [1999]; see also People v Machuca, 45 AD3d 104…
discussed Cited as authority (rule) People v. Heath
N.Y. App. Div. · 2008 · confidence medium
In reviewing defendant’s contention in his pro se brief that he was deprived of the right to the effective assistance of counsel, we need only note that defendant “failed to show the absence of a strategic or other legitimate explanation for what he contends was counsel’s failure” (People v Carralero, 9 AD3d 790, 792 [2004], lv denied 4 NY3d 742 [2004]; see People v Garcia, 75 NY2d 973, 974 [1990]; People v Van Ness, 43 AD3d 553, 555-556 [2007], lv denied 9 NY3d 965 [2007]).
discussed Cited as authority (rule) People v. Van Ness
N.Y. App. Div. · 2007 · confidence medium
While challenging, among other things, counsel’s failure to pursue an intoxication defense, defendant has “failed to show the absence of a strategic or other legitimate explanation for what he contends was counsel’s failure” (People v Carralero, 9 AD3d 790, 792 [2004], lv denied 4 NY3d 742 [2004]; see People v Garcia, 75 NY2d 973, 974 [1990]).
discussed Cited as authority (rule) People v. Hernandez
N.Y. App. Div. · 2007 · confidence medium
People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]; People v Downey, 256 AD2d 810, 810 [1998], lv denied 93 NY2d 969 [1999]; People v Jones, 185 AD2d 470, 471 [1992], lv denied 80 NY2d 975 [1992]; People v Hammond, 132 AD2d 849, 850 [1987], lv denied 70 NY2d 875 [1987]; People v Bryant, 115 AD2d 908, 909 [1985], lv denied 67 NY2d 881 [1986]).
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2005 · confidence medium
When defendant thereafter secreted the blade in his body, where it was eventually recovered, he demonstrated possession of a weapon while incarcerated at a correctional facility, acts which are sufficient to establish the separate crime of promoting prison contraband in the first degree (see People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]; People v Bailey, 291 AD2d 667, 667-668 [2002]).
discussed Cited as authority (rule) People v. Simmons
N.Y. App. Div. · 2005 · confidence medium
In addition, her intimate relationship with defendant was noted. 2 Having considered and rejected defendant’s remaining contentions, including the claim of ineffective assistance of counsel (see People v Carralero, 9 AD3d 790, 791-792 [2004], lv denied 4 NY3d 742 [2004]; People v Holmes, 9 AD3d 689, 692 [2004], lv denied 3 NY3d 675 [2004]), we affirm.
discussed Cited as authority (rule) People v. Cancer
N.Y. App. Div. · 2005 · confidence medium
Furthermore, although defendant claims that defense counsel failed to properly cross-examine a prosecution witness or call an alleged alibi witness, he has failed to demonstrate an absence of strategic or legitimate reasons for counsel’s actions in that regard (see People v Carralero, 9 AD3d 790, 792 [2004]).
cited Cited as authority (rule) People v. Garcia
N.Y. App. Div. · 2004 · confidence medium
Were we to consider counsel’s effectiveness insofar as the record permits, we would, find that meaningful representation was provided (see People v Carralero, 9 AD3d 790, 791-792 [2004]).
discussed Cited "see" People v. Marquis A.
N.Y. App. Div. · 2016 · signal: see · confidence high
Thus, Supreme Court’s “failure to submit such offense does not constitute error” (CPL 300.50 [2]; see People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4 NY3d 742 [2004]; People v Douglas, 194 AD2d 408, 409 [1993], lv denied 82 NY2d 717 [1993]).
discussed Cited "see" People v. Hull
N.Y. App. Div. · 2010 · signal: see · confidence high
Moreover, the affidavit of defendant’s trial counsel submitted with the CPL 440.10 motion did not reveal any “strategic or other legitimate explanation” for the failure to call a firearms expert (People v Heath, 49 AD3d 970, 974 [2008], lv denied 10 NY3d 959 [2008]; see People v Carralero, 9 AD3d 790, 792 [2004], lv denied 4 NY3d 742 [2004]).
The People of the State of New York
v.
Batista Carralero
Appellate Division of the Supreme Court of the State of New York.
Jul 29, 2004.
9 A.D.3d 790
Peters.
Cited by 20 opinions  |  Published
Peters, J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered October 28, 2002, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

Following a jury trial, defendant was convicted of the crime of promoting prison contraband in the first degree and sentenced as a second felony offender to a prison term of to 5 years. The conviction arose out of defendant’s actions on August 30, 2001 while confined at the Southport Correctional Facility in Chemung County. According to the testimony of Jodi Litwiler and Richard Portalatin, correction officers, defendant was placed in a metal detector chair after being questioned about a previous incident in the prison. When the device indicated that metal was present on defendant’s person, Portalatin, pursuant to Litwiler’s instruction, conducted a strip search of defendant. As defendant’s clothing was being searched, defendant asked Portalatin what would happen if he handed over a “weapon.” Before Portalatin responded, defendant threw a package onto the floor which contained pieces of a razor blade, partially secured with electrical tape.

[*791] On appeal, defendant contends that his conviction is not supported by legally sufficient evidence and the verdict is against the weight of the evidence because the People failed to prove that the object he possessed constituted “dangerous” contraband, a necessary element of the crime of promoting prison contraband in the first degree (see Penal Law § 205.25 [2]).* He argues that because the recovered razor blade was too dull and small to be used as a weapon, at most, he should have been found guilty of promoting prison contraband in the second degree which does not contain the requirement that the contraband be “dangerous.”

Viewing the evidence in a light most favorable to the People, we find that it established, beyond a reasonable doubt, that defendant knowingly and unlawfully possessed dangerous contraband (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Contes, 60 NY2d 620, 621 [1983]). We further conclude, based upon the credible evidence presented, that the verdict was not contrary to the weight of the evidence. Defendant described the razor as a “weapon” prior to relinquishing it to Portalatin. Additional testimony by the correction officers established the use to which the object could be put and the potential danger it posed to the safety and security of the facility (see People v Bailey, 291 AD2d 667, 668 [2002]; People v Rosario, 262 AD2d 802, 803 [1999], lv denied 93 NY2d 1026 [1999]; People v Mendoza, 244 AD2d 815, 816 [1997], lv denied 91 NY2d 943 [1998]; People v Jones, 185 AD2d 470, 471 [1992], lv denied 80 NY2d 975 [1992]).

We further find no error in County Court’s failure to sua sponte submit the charge of promoting prison contraband in the second degree to the jury (see CPL 300.50 [2]; People v David, 255 AD2d 620, 621-622 [1998]; see also People v Douglas, 194 AD2d 408, 409 [1993], lv denied 82 NY2d 717 [1993]). Defendant did not request the submission of the lesser included charge and, even if he did, no reasonable view of the evidence could have supported its submission (see People v Jones, supra at 471; see also People v Livingston, 262 AD2d 786, 787 [1999], lv denied 94 NY2d 881 [2000]).

Defendant’s ineffective assistance of counsel claim is similarly unavailing. Viewing the evidence, the circumstances of the case and the law, in their totality and as of the time of defendant’s representation, we find that he received meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v [*792] Baldi, 54 NY2d 137, 147 [1981]; People v Gilliam, 300 AD2d 701, 701 [2002], lv denied 99 NY2d 628 [2003]). Counsel made appropriate pretrial motions, vigorously attempting to suppress the statement made by defendant to the correction officers. At trial, counsel made appropriate evidentiary objections and zealously cross-examined witnesses. As defendant failed to show the absence of a strategic or other legitimate explanation for what he contends was counsel’s failure to request a charge on the lesser included offense (see People v Alston, 298 AD2d 702, 704 [2002], lvs denied 99 NY2d 554, 555 [2002]; see also People v Wright, 297 AD2d 875, 875 [2002]), we find that adequate and meaningful representation was provided.

Finally, having further failed to establish an abuse of discretion or extraordinary circumstances which would warrant our modification of his sentence (see People v Hawes, 298 AD2d 706, 709 [2002], lv denied 99 NY2d 582 [2003]), the sentence will remain undisturbed.

Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Contraband is considered dangerous if it is “capable of such use as may endanger the safety or security of a detention facility or any person therein” (Penal Law § 205.00 [4]).