People v. Brisman

• Decision Date: 09 December 2021
• Docket Number: 111493
• Citation: 200 A.D.3d 1219,157 N.Y.S.3d 599
• Parties: The PEOPLE of the State of New York, Respondent, v. Jason BRISMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1219
157 N.Y.S.3d 599

The PEOPLE of the State of New York, Respondent,
v.
Jason BRISMAN, Appellant.

111493

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 13, 2021
Decided and Entered: December 9, 2021

157 N.Y.S.3d 600

Clea Weiss, Ithaca, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Philip A. Alvaro of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

157 N.Y.S.3d 601

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 promoting prison contraband in the first degree.

Following a jury trial, defendant was convicted of promoting prison contraband in the first degree in connection with his alleged possession of a "1¾ inch long by ¾ inch wide piece of porcelain sharpened on one end." He was then sentenced, as a second felony offender, to a prison term of 3½ to 7 years, to run consecutively with the sentence he was then serving.

Defendant contends that the verdict is not supported by the weight of the evidence. "When undertaking a weight of the evidence review, [this Court] must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Gill, 168 A.D.3d 1140, 1140, 90 N.Y.S.3d 392 [2019] [internal quotation marks and citations omitted]). As relevant here, "[a] person is guilty of promoting prison contraband in the first degree when[,] ... [b]eing a person confined in a detention facility, he [or she] knowingly and unlawfully makes, obtains or possesses any dangerous contraband" ( Penal Law § 205.25[2] ). Possession is defined as having physical possession or otherwise exercising dominion or control over tangible property (see Penal Law § 10.00[8] ). Notably, "[c]onstructive possession can be shown when the defendant has a sufficient level of control over the area in which the contraband was found"; however, "[a] defendant's mere presence in the same location as contraband is insufficient to establish constructive possession" ( People v. Maricle, 158 A.D.3d 984, 986, 71 N.Y.S.3d 211 [2018] [internal quotation marks and citations omitted]; see e.g. People v. Duran, 6 A.D.3d 809, 811, 775 N.Y.S.2d 390 [2004], lv denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200 [2004] ). Whether the contraband possessed is dangerous "rests on whether there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility" ( People v. Robinson, 183 A.D.3d 1118, 1121–1122, 124 N.Y.S.3d 468 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 378, 152 N.E.3d 1180 [2020] ).

At trial, Justin Taft testified that he was employed as a correction officer at Elmira Correctional Facility and that, on the day of the incident, he was supervising recreational time in the gym when he observed two incarcerated individuals fighting. Taft asserted that he was about 10 feet away from where the altercation was occurring. According to Taft, defendant had been "making slashing-type motions" toward another incarcerated individual, which Taft further described as a "side to side" motion

157 N.Y.S.3d 602

– rather than the back-and-forth motion associated with fist punches. In response, the other incarcerated individual punched defendant, which caused defendant to fall to the ground. Taft secured defendant with mechanical restraints and observed that defendant had an abrasion on his forehead and a cut on his hand; the other incarcerated individual had a laceration on his upper left cheek that was bleeding. Taft then frisked defendant and did not find any contraband directly near or on his person.

Ivan McKeever, another correction...