People v. Bryant

• Citation: 200 A.D.3d 1483,161 N.Y.S.3d 399
• Decision Date: 30 December 2021
• Docket Number: 110448
• Parties: The PEOPLE of the State of New York, Respondent, v. Christopher BRYANT, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1483

161 N.Y.S.3d 399

The PEOPLE of the State of New York, Respondent,

v.Christopher BRYANT, Appellant.

110448

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

Calendar Date: October 15, 2021

Decided and Entered: December 30, 2021

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered January 5, 2018, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree, menacing in the second degree and assault in the third degree.

Defendant was indicted and charged with criminal possession of a weapon in the second degree, menacing in the second degree and assault in the third degree in connection with an incident that occurred in March 2017 in the City of Albany, wherein defendant allegedly punched the victim in the face and displayed what appeared to be a firearm. Defendant was apprehended within hours of this incident, and a subsequent search of the residence that defendant shared with his girlfriend, Shariyah Daniels, revealed, among other things, a loaded handgun secreted in a woman's boot.

Following unsuccessful motions to, among other things, sever the weapon charge from the remaining counts of the indictment, suppress defendant's postarrest statements to law enforcement and preclude evidence of certain uncharged crimes/prior bad acts, the matter proceeded to trial, at which time the People were unable to locate the victim. County Court conducted a Sirois hearing midtrial and thereafter permitted the People to introduce the victim's grand jury testimony into evidence. The jury convicted defendant of all charges, and County Court sentenced defendant – as a second felony offender – to a prison term of 10 years followed by five years of postrelease supervision upon his conviction of criminal possession of a weapon in the second degree and to time served upon the remaining convictions. This appeal by defendant followed.

Initially, we reject defendant's contention that the verdict is not supported by legally sufficient evidence and, further, is against the weight of the evidence. "When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine 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. Campbell, 196 A.D.3d 834, 835, 149 N.Y.S.3d 720 [2021] [internal quotation marks and citations omitted], lvs denied 37 N.Y.3d 1025, 153 N.Y.S.3d 415, 175 N.E.3d 440 [2021]). "In reviewing whether a conviction is supported by the weight of the evidence, we decide whether, based on all the credible evidence, a different finding would not have been unreasonable, and then, 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 [there]from" ( People v. Brown, 195 A.D.3d 1163, 1164, 150 N.Y.S.3d 774 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1025, 153 N.Y.S.3d 414, 175 N.E.3d 439 [2021] ).

As relevant here, "[a] person is guilty of assault in the third degree when ... [w]ith intent to cause physical injury to another person, he [or she] causes such injury to such person" ( Penal Law § 120.00[1] ). "Physical injury, in turn, is defined as ‘impairment of physical condition or substantial pain’ " ( People v. Rudge, 185 A.D.3d 1214, 1215, 126 N.Y.S.3d 247 [2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020], quoting Penal Law § 10.00[9] ). Substantial pain need not "be severe or intense to be substantial," but such pain "is more than slight or trivial" ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). Additionally, "[a] person is guilty of menacing in the second degree when ... [h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury ... by displaying ... what appears to be a pistol, revolver ... or other firearm" ( Penal Law § 120.14[1] ).

The victim's grand jury testimony revealed that, on the evening in question, she and a friend were walking along Henry Johnson Boulevard in Albany when they were nearly struck by a red sedan. The vehicle was operated by Daniels, who had attended school with the victim, and an individual later identified as defendant was a passenger in the vehicle. Words were exchanged, Daniels and defendant exited the vehicle and, as relevant here, "someone spit[ ] on [the victim's] back." When the victim turned around, defendant punched her "in [her] face extremely hard" on the left side – "like [she] was a man" – causing her to "stutter

[ ] back and hit a pole" in something of a daze. As Daniels grabbed the victim's bag and ran to the car, the victim saw defendant "gripping at his waist" and observed "a black and silver object ... [that] look[ed] like a gun." Defendant continued yelling at the victim, stating, "I'm a shooter," and indicated that his name was "Brisk." The victim – "scared for [her] life" – ran away. According to the victim, the punch hurt "[t]remendously," and she experienced some swelling and mild bruising as a result. The victim's mother and Anthony DiGiuseppe, a detective with the Albany Police Department, testified that they observed swelling on the victim's face following this incident – although their testimony was inconsistent regarding the precise location thereof.

Defendant does not dispute that he was involved in an altercation with the victim. Indeed, he acknowledged in his recorded interview with DiGiuseppe – a redacted version of which was admitted into evidence – that he grabbed the victim's shirt and pushed her away in an effort to break up the fight between Daniels and the victim. Rather, defendant argues – as to the assault charge – that there was insufficient evidence that the victim sustained a physical injury and – as to the menacing charge – that the People failed to establish that he displayed what appeared to be a firearm. We disagree. The victim's account of the incident – if credited – constitutes legally sufficient evidence to sustain the assault and menacing convictions. Further, although a different verdict would not have been unreasonable, we find that the jury's verdict as to those charges is in accord with the weight of the evidence.

As to the weapon charge, "[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm" ( Penal Law § 265.03[3] ).¹ A "firearm" is defined – as relevant here – as "any pistol or revolver" ( Penal Law § 265.00[3][a] ), and a "loaded firearm" means "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm" ( Penal Law § 265.00[15] ; see People v. McCoy, 169 A.D.3d 1260, 1262, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ). "[A] defendant may be found to possess a firearm through actual, physical possession or through constructive possession" – the latter of which "requires proof that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the [weapon] is found" ( People v. McCoy, 169 A.D.3d at 1262, 95 N.Y.S.3d 441 [internal quotation marks and citations omitted]; accord People v. Sloley, 179 A.D.3d 1308, 1309, 117 N.Y.S.3d 373 [2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 38, 148 N.E.3d 502 [2020] ; see Penal Law § 10.00[8] ). "Constructive possession may be established through circumstantial evidence" ( People v. Sloley, 179 A.D.3d at 1309, 117 N.Y.S.3d 373 [internal quotation marks, brackets and citation omitted]), and the defendant's access to the area where the firearm was discovered need not be exclusive in order to establish his or her constructive possession thereof (see People v. Kalabakas, 183 A.D.3d 1133, 1140, 124 N.Y.S.3d 448 [2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 407, 152 N.E.3d 1209 [2020] ).

When the police searched the premises located at 204 Clinton Avenue, they found a .22 caliber pistol – loaded with four live rounds of ammunition – inside of a women's boot in a bedroom. The gun, which was described as a "pocket pistol," was silver and white in color and did not match the victim's description of the weapon defendant previously displayed to her. Additional ammunition was present in the bedroom and the entryway of the premises, and subsequent test-firing of the seized weapon confirmed that it was operable. Although a search of the premises did not disclose any mail or other personal belongings that could be identified as belonging to defendant, a police officer who was providing outreach services to defendant testified that, two days prior to the incident, defendant indicated that he was living at 204 Clinton Avenue with his girlfriend,² and a duffle bag containing men's clothing was found in the bedroom. Similarly, no fingerprints were recovered from the seized weapon, but subsequent analysis of the mixture of DNA found on the trigger of the gun generated a profile consistent with two donors, one of which was male. With respect to the portion of the profile that was suitable for comparison, Daniels was excluded as a possible contributor, and defendant was "included as a possible contributor of DNA to that mixture profile." Although defendant denied that the gun was his, he insisted that the weapon did not belong to Daniels, and DiGiuseppe testified that Daniels was "[v]ery upset" when she learned that a gun had been found in the house. Such proof, in...