PEOPLE v. BRISTEL (2022)

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered November 20, 2017, convicting defendant, after a jury trial, of promoting prison contraband in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, and judgment, same court (Guy H. Mitchell, J.), rendered January 8, 2019, as amended February 7 and 21, 2019, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a concurrent term of four years, unanimously affirmed.

The verdict convicting defendant of promoting prison contraband and criminal possession of a weapon was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  There is no basis for disturbing the jury's credibility determinations, including its resolution of inconsistencies in testimony.  The evidence, including the testimony of the People's expert on prison security and contraband detection, provided a plausible explanation of how, despite security precautions, defendant was able to bring a weapon to a court appearance and then prevent it from being recovered.

Defendant's objections to the expert's testimony were insufficient to preserve his particular appellate claim that this testimony lacked a factual basis in the record (see People v. Graves, 85 N.Y.2d 1024, 1026–1027, 630 N.Y.S.2d 972, 654 N.E.2d 1220 [1995]), and we decline to review it in the interest of justice.  As an alternative holding, we find that the court providently exercised its discretion in permitting the testimony.  Contrary to defendant's claim, the expert's testimony was not speculative, and it was adequately supported by the trial evidence, along with reasonable inferences to be drawn therefrom (see People v. Brown, 97 N.Y.2d 500, 506–507, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002]).

With regard to the conviction by guilty plea, defendant did not preserve his claim that his plea was involuntary because it was made under the threat of consecutive sentences since he never moved to withdraw his plea or to vacate his judgment of conviction (see People v. Ali, 96 N.Y.2d 840, 841, 729 N.Y.S.2d 434, 754 N.E.2d 193 [2001];  see also People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015]), and we decline to review it in the interest of justice.  As an alternative holding, we find that the record as a whole establishes the voluntariness of the plea, notwithstanding the court's reference to the probability that a sentence on a conviction after trial would be consecutive to defendant's existing sentence (see People v. Elliot, 137 A.D.3d 715, 716, 27 N.Y.S.3d 386 [1st Dept. 2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016]).