| People v Brisman |
| 2021 NY Slip Op 06887 [200 AD3d 1219] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason Brisman, Appellant. |
Clea Weiss, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Philip A. Alvaro of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Chemung County (Baker, J.),rendered December 17, 2018, upon a verdict convicting defendant of the crime of promotingprison contraband in the first degree.
Following a jury trial, defendant was convicted of promoting prison contraband in the firstdegree in connection with his alleged possession of a "1
Defendant contends that the verdict is not supported by the weight of the evidence. "Whenundertaking a weight of the evidence review, [this Court] must first determine whether, based onall the credible evidence, a different finding would not have been unreasonable and then weighthe relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence. When conducting this review, we consider the evidence in a neutral lightand defer to the jury's credibility assessments" (People v Gill, 168 AD3d 1140, 1140-1141 [2019] [internalquotation marks and citation omitted]). As relevant here, "[a] person is guilty of promotingprison contraband in the first degree when[,] . . . [b]eing a person confined in adetention facility, he [or she] knowingly and unlawfully makes, obtains or possesses anydangerous contraband" (Penal Law § 205.25 [2]). Possession is defined as havingphysical possession or otherwise exercising dominion or control over tangible property(see Penal Law § 10.00 [8]). Notably, "[c]onstructive possession can beshown when the defendant has a sufficient level of control over the area in which the contrabandwas found"; however, "[a] defendant's mere presence in the same location as contraband isinsufficient to establish constructive possession" (People v Maricle, 158 AD3d 984, 986 [2018] [internal quotationmarks and citations omitted]; see e.g.People v Duran, 6 AD3d 809, 811 [2004], lv denied 3 NY3d 639 [2004]).Whether the contraband possessed is dangerous "rests on whether there is a substantialprobability that the item will be used in a manner that is likely to cause death or other seriousinjury, to facilitate an escape, or to bring about other major threats to a detention facility" (People v Robinson, 183 AD3d1118, 1121-1122 [2020] [internal quotation marks and citations omitted], lv denied35 NY3d 1069 [2020]).
At trial, Justin Taft testified that he was employed as a correction officer at ElmiraCorrectional Facility and that, on the day of the incident, he was supervising recreational time inthe gym when he observed two incarcerated individuals fighting. Taft asserted that he was about10 feet away from where the altercation was occurring. According to Taft, defendant had been"making slashing-type motions" toward another [*2]incarceratedindividual, which Taft further described as a "side to side" motion—rather than theback-and-forth motion associated with fist punches. In response, the other incarcerated individualpunched defendant, which caused defendant to fall to the ground. Taft secured defendant withmechanical restraints and observed that defendant had an abrasion on his forehead and a cut onhis hand; the other incarcerated individual had a laceration on his upper left cheek that wasbleeding. Taft then frisked defendant and did not find any contraband directly near or on hisperson.
Ivan McKeever, another correction officer, testified and affirmed that he was present in thegym at the time of the incident and he recalled that defendant and another incarcerated individualhad gotten into an altercation "[p]retty much immediately" after recreational time commenced.McKeever stated that he primarily observed the other incarcerated individual involved in thealtercation and recalled frisking and restraining that individual; McKeever did not locate anycontraband on that incarcerated individual's person. He asserted that he observed both defendantand the other incarcerated individual exchange closed fist punches and "[s]wiping at each other"and that both men had been "using motions that are equivalent" to slashing.
Gordon Simpson, another correction officer at the facility, testified that he was tasked withresponding to any altercation. He recalled that he had arrived at the yard about a minute or twoafter the altercation had occurred and observed that the two involved incarcerated individuals hadbeen restrained. Thereafter, while conducting a search of the area, Simpson found a "weaponlaying next to one of the [incarcerated individuals]" in the corner of the gym yard; he stated thatthe contraband was found "[w]ithin arm's distance" of defendant. Simpson described thecontraband as a sharp piece of porcelain that had blood on it; however, he could not recallwhether the blood on the contraband was wet or dry at the time he recovered it. Simpsonconfirmed that the facility's behavior rule book prohibited "any item that may be classified as aweapon or dangerous instrument by description, use[ ] or appearance," as well as "any authorizeditem that has been altered in any manner so as to change its original intent or purpose." Simpsonopined that the recovered contraband would be prohibited under the aforementioned rulesbecause "it's a weapon, it's altered." He stated that even a small weapon can cause injury in theform of three-to-four-inch cuts that could require 15 to 20 stitches. A registered nurse at thefacility testified that she had examined defendant and the other incarcerated individual who hadbeen involved in the altercation and that defendant presented with abrasions above his lefteyebrow and to the back side of his head, as well as a laceration on his right forefinger; the otherincarcerated individual presented with a "scratch[*3]" to his leftcheek and abrasions on his lip. McKernan distinguished an abrasion—which occurs whenthe top layer of skin gets brushed off—from a laceration, which is a disruption of tissueand results in clean lines.
Given that the jury could have reasonably found that defendant did not possess thecontraband due to the fact that no one saw him holding or using the contraband, a differentverdict would not have been unreasonable. Thus, we "must, like the trier of fact below, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony" (People v Robinson, 183 AD3d at 1121 [internalquotation marks and citations omitted]; see People v Baber, 182 AD3d 794, 799 [2020], lv denied35 NY3d 1064 [2020]). Based upon the testimony from the correction officers regarding thealtercation and defendant's participation therein, which directly preceded the recovery of thesubject contraband, along with the medical evidence of a laceration to defendant's hand, we findthat the jury reasonably could have concluded that defendant possessed the contraband and thatdefendant had used such contraband during the altercation (see People v Robinson, 183AD3d at 1121). Contrary to defendant's contention, any inconsistencies in the testimony given bythe correction officers were not so significant as to require the verdict to be set aside. Moreover," 'such inconsistencies were highlighted to the jury,' thus allowing it to render adetermination as to witness credibility' " (id. at 1122, quoting People v Carter, 90 AD3d 1159,1160 [2011]). Turning to whether the subject contraband was dangerous, the jury, upon viewingthe item in evidence, could reasonably have found that the testimony about its dangerousness wasaccurate. Furthermore, it has been observed that "even an item unable to render harm" can beconsidered dangerous contraband within the meaning of the Penal Law (People vRobinson, 183 AD3d at 1122). Accordingly, we find that the verdict is supported by theweight of the evidence (People vBarzee, 190 AD3d 1016, 1019-1020 [2021], lv denied 36 NY3d 1094[2021]).
Finally, defendant failed to preserve his claim that the sentence imposed served to punishhim for exercising his right to a trial (see People v Hurley, 75 NY2d 887, 888 [1990];People v Baber, 182 AD3d at 803). Although defendant was sentenced to the maximumterm, the record reflects that County Court relied on the appropriate factors in imposingdefendant's sentence. Thus, we discern "no extraordinary circumstances or abuse of discretionwarranting a reduction of the sentence in the interest of justice" (People v Planty, 155 AD3d 1130,1135 [2017], lv denied 30 NY3d 1118 [2018]; see People v Jones, 139 AD3d 1189, 1191 [2016], lv denied28 NY3d 932 [2016]).
Egan Jr., J.P., Lynch, Clark and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.