| People v Bryson |
| 2017 NY Slip Op 03808 [150 AD3d 1406] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AnthonyD. Bryson, Appellant. |
Terrence M. Kelly, Loudonville, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Keene, J.),rendered March 25, 2013, upon a verdict convicting defendant of the crime of promoting prisoncontraband in the first degree.
During defendant's processing at a correctional facility reception center, a Body OrificeScanning System detected the presence of a metal object inside his body and a subsequent X rayrevealed that the object was located in defendant's rectum and consisted of two X-acto orscalpel-type blades encased in a non-metal material. Defendant was placed on one-on-onecontraband watch for the next three days, but the object was never recovered. Defendant wassubsequently charged by indictment with promoting prison contraband in the first degree. Prior totrial, the People conceded that inculpatory statements that defendant made to correction officialswere obtained in violation of his Miranda rights and, therefore, would not be used in theircase-in-chief. At the ensuing jury trial, defendant testified and, on cross-examination, deniedmaking the inculpatory statements. As a result, the People introduced defendant's statements inrebuttal to impeach his credibility. The jury then found defendant guilty, and he nowappeals.
While defendant readily concedes that X-acto or scalpel-type blades are dangerous prisoncontraband, he contends that, because the objects were never recovered, the People were unableto establish that he possessed any such contraband. Thus, defendant asserts that the jury verdict isnot supported by legally sufficient evidence and is against the weight of the evidence. Wedisagree. At trial, the X ray was admitted into evidence and an experienced radiologist testifiedthat it depicted an object, consisting of two metal blades, each with a sharp edge and a [*2]very sharp point, and each the same shape and size as an X-acto orscalpel-type blade. The radiologist stated that the blades appeared to be encased in a less densematerial and they were located in defendant's lower pelvis, in the area of his rectum. Althoughdefendant testified on his own behalf that he never possessed an X-acto blade and that he hadbeen "set up," we find that the jury could easily conclude that defendant possessed the bladesclearly depicted on the X ray and that such blades constitute "[d]angerous contraband" (PenalLaw § 205.00 [4]; seePeople v Johnson, 24 AD3d 803, 804 [2005]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4NY3d 742 [2004]; People v Rosario, 262 AD2d 802, 803 [1999], lv denied 93NY2d 1026 [1999]). In addition, after viewing the evidence in a neutral light and deferring to thejury's credibility determinations, we are satisfied that the verdict was not against the weight of theevidence (see People v Breedlove,61 AD3d 1120, 1121 [2009], lv denied 12 NY3d 913 [2009]; People v Callender, 48 AD3d 976,977-978 [2008], lv denied 10 NY3d 860 [2008]).
Defendant also contends that County Court committed reversible error by failing to instructthe jury that his statements could only be considered for the limited purpose of assessing hiscredibility. While defendant concedes that this issue is unpreserved for our review, he asserts thatCounty Court should have given the instruction sua sponte, and urges this Court to takecorrective action in the interest of justice. In our view, however, even assuming that CountyCourt should have provided the limiting instruction sua sponte, this error was harmless inasmuchas the proof of defendant's guilt was overwhelming and there is no significant probability that thejury would have acquitted defendant if the error had not occurred (see People vBreedlove, 61 AD3d at 1122; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). Nor is there any evidence that County Court's error led to the jury's stateddifficulty in adjudicating this case. Rather, the record reflects that the jury foreperson made astatement after the verdict was rendered to express the jury's disapproval of "sloppiness" and"procedural deficiencies" on the part of correctional facility staff. Contrary to defendant'scontention, the statement reflected no equivocation regarding the verdict itself. We also rejectdefendant's claim that County Court denied him a favorable circumstantial evidence charge basedupon the erroneous belief that his admissions could be considered as proof of guilt inasmuch asthe record reflects defendant's affirmative statement that he was not requesting such a charge. Inany event, the charge was not justified as there was direct evidence of defendant's possession ofdangerous contraband (see generallyPeople v Hardy, 26 NY3d 245, 249 [2015]). In sum, we find that reversal in the interestof justice is not warranted.
Garry, J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.