People v. Brian, 644 N.E.2d 1345 (N.Y. 1994). · Go Syfert
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People v. Brian, 644 N.E.2d 1345 (N.Y. 1994). Cases Citing This Book View Copy Cite
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Failure to provide a circumstantial evidence charge is harmless error when the evidence of guilt is overwhelming and no reasonable possibility exists that the jury would have acquitted.

A defendant charged with possessory crimes based on circumstantial evidence of dominion and control over contraband failed to receive a requested circumstantial evidence charge. Although the trial court erred by declining the charge when the prosecution's case relied entirely on circumstantial proof, the error was harmless. Because the evidence of the defendant's shared control over the drugs and weapons was overwhelming, there was no reasonable possibility that the jury would have acquitted had the instruction been given. The failure to provide the charge did not violate the defendant's constitutional right to a jury trial.

80 citation events (59 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Coleman, 2026 NY Slip Op 04629 (N.Y. App. Div. 4th Dep't 2026)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
How cited ↗
Cited for
84 N.Y.2d at 889 Determining harmless error for circumstantial evidence charge43 citing cases“the exceptional case where the failure to give the circumstantial evidence charge was harmless error”5 citing courts quote it · 39 listed here
  • People v. Coleman, 2026 NY Slip Op 04629 (N.Y. App. Div. 4th Dep't 2026).published 2 cites
    Thus, this is not "the exceptional case where the failure to give the circumstantial evidence charge was harmless error" ( People v Brian , 84 NY2d 887, 889 [1994]; see People v Swem , 182 AD3d 1050, 1052 [4th Dept 2020]).
  • People v. McEnnis, 247 A.D.3d 1473 (N.Y. App. Div. 4th Dep't 2026).published
    The circumstantial evidence, which included cell phone and electronic location data placing defendant at all three crime scenes, is overwhelming, and there is no significant probability that defendant would have been acquitted had the circ…
  • People v. Rodriguez, 237 A.D.3d 1513 (N.Y. App. Div. 4th Dep't 2025).published 3 cites
    Further, this is not "the exceptional case where the failure to give the circumstantial evidence charge was harmless error" ( People v Brian , 84 NY2d 887, 889 [1994]; see People v Exford , 234 AD3d 1252 , 1254 [4th Dept 2025]; People v Sw…
  • People v. Exford, 234 A.D.3d 1252 (N.Y. App. Div. 4th Dep't 2025).published
    Further, this is not "the exceptional case where the failure to give the circumstantial evidence charge was harmless error" ( People v Brian , 84 NY2d 887, 889 [1994]; see People v Swem , 182 AD3d 1050, 1052 [4th Dept 2020]).
  • People v. Hilton, 185 A.D.3d 1147 (N.Y. App. Div. 3d Dep't 2020).published
    In any event, even assuming that the People's proof consisted solely of circumstantial evidence and that a circumstantial evidence charge was warranted ( see People v Hardy , 26 NY3d 245, 249 [2015]), any failure to give such charge was ha…
  • People v. Swem, 123 N.Y.S.3d 349 (N.Y. App. Div. 4th Dep't 2020).published
    Contrary to the People's contention, this is not "the exceptional case where the failure to give the circumstantial evidence charge was harmless error" ( People v Brian , 84 NY2d 887, 889 [1994]; see People v James , 147 AD3d 1211, 1214 [3…
  • People v. Rattary, 180 A.D.3d 565 (N.Y. App. Div. 1st Dep't 2020).published
    In any event, given the overwhelming direct and circumstantial evidence, there is no reasonable possibility that the absence of a circumstantial evidence charge affected the verdict ( see People v Brian , 84 NY2d 887, 889 [1994]).
  • People v. Wesley, 175 A.D.3d 1194 (N.Y. App. Div. 1st Dep't 2019).published
    As an alternative holding, we find that the circumstantial evidence that defendant possessed the knife found in the police van was overwhelming and there was no reasonable possibility that the absence of a circumstantial evidence charge ca…
  • People v. Ayala, 154 A.D.3d 1293 (N.Y. App. Div. 4th Dep't 2017).published
    Here, although there was direct evidence of defendant’s dominion and control over the apartment based on his presence in the apartment, “there was no direct evidence of his dominion or control over the drugs . . . found in the apartment” (…
  • People v. Gaston, 147 A.D.3d 1219 (N.Y. App. Div. 3d Dep't 2017).published
    County Court was obliged to, but did not, give a circumstantial evidence charge to the jury under these circumstances (see People v Brian, 84 NY2d 887, 889 [1994]; People v Spencer, 1 AD3d 709 , 710-711 [2003]).
Show 29 more citing cases
  • People v. Pettis Hardy, 43 N.E.3d 734 (N.Y. 2015).published
    IL It is well settled that a trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence (see People v Santiago, 22 NY3d 990, 991-992 [20…
  • People v. Perry, 116 A.D.3d 1253 (N.Y. App. Div. 3d Dep't 2014).published 2 cites
    Such constructive possession may be established through either direct or circumstantial evidence (see People v Brian, 84 NY2d 887, 889 [1994]; People v Pinkney, 90 AD3d 1313, 1314 [2011]), and may be found even though others have access to…
  • People v. Santiago, 3 N.E.3d 1137 (N.Y. 2013).published
    Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the conc…
  • People v. Raosto, 110 A.D.3d 524 (N.Y. App. Div. 1st Dep't 2013).published 2 cites
    In any event, the absence of such a charge could not have affected the verdict, and any error in this regard was harmless (see People v Brian, 84 NY2d 887, 889 [1994]).
  • People v. Jones, 105 A.D.3d 1059 (N.Y. App. Div. 2d Dep't 2013).published 2 cites
    However, the error in omitting the circumstantial evidence instruction was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the jury would have acquitted the defendant of the subjec…
  • People v. Singleton, 102 A.D.3d 517 (N.Y. App. Div. 1st Dep't 2013).published 2 cites
    In any event, there is no reasonable possibility that the absence of a circumstantial evidence charge affected the verdict (see People v Brian, 84 NY2d 887, 889 [1994]).
  • People v. Maddox, 92 A.D.3d 696 (N.Y. App. Div. 2d Dep't 2012).published
    Where the evidence against a defendant is entirely circumstantial, the failure to so instruct the jury and to inform the jury that it is required to apply the circumstantial evidence standard is error (see People v Brian, 84 NY2d 887, 889…
  • People v. Pinkney, 90 A.D.3d 1313 (N.Y. App. Div. 3d Dep't 2011).published
    Possession can be actual or constructive (see Penal Law § 10.00 [8]) and constructive possession can be established by either direct or circumstantial evidence (see People v Brian, 84 NY2d 887, 889 [1994]).
  • People v. Solomon, 78 A.D.3d 1426 (N.Y. App. Div. 3d Dep't 2010).published
    We reverse and remit for a new trial, however, based on County Court’s failure to give an expanded circumstantial evidence charge for those counts of the indictment based wholly on the circumstantial evidence that defendant possessed an op…
  • People v. Gorham, 72 A.D.3d 1108 (N.Y. App. Div. 2d Dep't 2010).published
    Contrary to the defendant’s contention, this error was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the error contributed to his convictions (see People v Crimmins, 36 NY2d 230,…
  • People v. Gonzalez, 70 A.D.3d 855 (N.Y. App. Div. 2d Dep't 2010).published
    In any event, “this represents the exceptional case where the failure to give the circumstantial evidence charge was harmless error” (People v Brian, 84 NY2d 887, 889 [1994]; see People v Lopez, 28 AD3d 234, 235 [2006]).
  • People v. Baker, 67 A.D.3d 1446 (N.Y. App. Div. 4th Dep't 2009).published
    The evidence of defendant’s guilt is overwhelming, and there is no significant probability that defendant would have been acquitted had that charge been given (see generally People v Brian, 84 NY2d 887, 889 [1994]; People v Crimmins, 36 NY…
  • People v. Forsythe, 59 A.D.3d 1121 (N.Y. App. Div. 4th Dep't 2009).published
    County Court properly denied defendant’s request for a circumstantial evidence charge inasmuch as there was direct, evidence of defendant’s constructive possession of the cocaine (see People v Moni, 13 AD3d 262, 262-263 [2004], lv denied 4…
  • People v. Hancock, 46 A.D.3d 383 (N.Y. App. Div. 1st Dep't 2007).published
    Even if we were to find that the court should have delivered such an evidence charge, its absence was harmless because the evidence “was overwhelming and there simply is no reasonable possibility, let alone significant probability that the…
  • People v. Dancy, 44 A.D.3d 331 (N.Y. App. Div. 1st Dep't 2007).published
    Even if we were to find that the court should have delivered a circumstantial evidence charge, its absence was harmless because the evidence “was overwhelming and there simply is no reasonable possibility, let alone significant probability…
  • People v. Albanese, 38 A.D.3d 1015 (N.Y. App. Div. 3d Dep't 2007).published 2 cites
    As defendant’s remaining contentions on appeal, including those raised in his pro se submission to this Court, were not preserved for appellate review by an appropriate objection at trial, we address them only in the context of deciding wh…
  • People v. Fulton, 28 A.D.3d 1180 (N.Y. App. Div. 4th Dep't 2006).published
    The evidence, which included inculpatory statements made by defendant, is overwhelming, and there is no significant probability that defendant would have been acquitted had the circumstantial evidence charge been given (see People v Brian,…
  • People v. Lopez, 28 A.D.3d 234 (N.Y. App. Div. 1st Dep't 2006).published
    Were we to review this claim, we would find that, although a circumstantial evidence charge would have been appropriate, its absence was harmless because the evidence “was overwhelming and there simply is no reasonable possibility, let alo…
  • People v. Edwards, 23 A.D.3d 1140 (N.Y. App. Div. 4th Dep't 2005).published
    We agree with defendant, however, that the evidence presented was wholly circumstantial, and County Court’s error in refusing to give a circumstantial evidence charge cannot be deemed harmless because the evidence of guilt is not overwhelm…
  • People v. Moni, 13 A.D.3d 262 (N.Y. App. Div. 1st Dep't 2004).published
    There was direct evidence of defendant’s constructive possession of the contraband itself (compare People v Brian, 84 NY2d 887, 889 [1994]), including testimony that the police observed defendant entering and leaving the back room at his p…
  • People v. Taylor, 6 A.D.3d 556 (N.Y. App. Div. 2d Dep't 2004).published
    Moreover, under the circumstances of this case it cannot be said that this error was harmless (see CPL 300.10 [2]; cf. People v Brian, 84 NY2d 887, 889 [1994]).
  • People v. Phillips, 2 A.D.3d 278 (N.Y. App. Div. 1st Dep't 2003).published
    In any event, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant’s guilt (see People v Brian, 84 NY2d 887, 889 [1994]).
  • People v. Spencer, 1 A.D.2d 709 (N.Y. App. Div. 3d Dep't 2003).published 2 cites
    Defendant was not observed in actual physical possession of the drugs found in the cabinet in his apartment and, although the People presented direct evidence of his dominion and control over the apartment, there was no direct evidence con…
  • People v. David, 234 A.D.2d 787 (N.Y. App. Div. 3d Dep't 1996).published
    Based upon defendant’s absence from the apartment when the search occurred, together with the evidence concerning Wilson’s credibility and other evidence presented by defendant on the issue of his control over the apartment, we cannot say…
  • People v. Brown, 133 A.D.3d 772 (N.Y. App. Div. 2d Dep't 2015).published
    “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” (People v Skyles, 266 AD2d 321, 322 [1999]; see People v Brian, 84 NY2d 887, 889 [1994…
  • People v. Simmons, 74 A.D.3d 1247 (N.Y. App. Div. 2d Dep't 2010).published
    Since this error was not harmless (cf. People v Brown, 87 NY2d 950, 951 [1996]; People v Cahill, 2 NY3d at 64-65; see generally People v Brian, 84 NY2d 887, 889 [1994]), and it is impossible to determine whether the jury relied on the defe…
  • People v. Griffin, 9 A.D.3d 841 (N.Y. App. Div. 4th Dep't 2004).published
    The direct evidence of defendant’s control over the area where the drugs were found “requires the drawing of an additional inference to establish defendant’s control over the contraband itself and, therefore, the circumstantial evidence ch…
  • People v. Vasquez, 56 A.D.2d 378 (N.Y. App. Div. 1st Dep't 2008).published
    This was not the type of constructive possession case where the jury would have to draw an additional inference in order to find the underlying facts upon which constructive possession would be based (see People v Moni, 13 AD3d 262 [2004],…
  • People v. Cain, 9 A.D.3d 827 (N.Y. App. Div. 4th Dep't 2004).published
    In any event, we conclude that any error is harmless (see People v Alava, 216 AD2d 794, 795 [1995], lv denied 87 NY2d 897 [1995]; see also People v Brian, 84 NY2d 887, 889 [1994]).
Other citing cases3 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Kevin Brian, Also Known as Kevin Bryan, Appellant
New York Court of Appeals.
Oct 25, 1994.
Published opinion
644 N.E.2d 1345
1994 N.Y. LEXIS 3383
APPEARANCES OF COUNSEL, Susan J. Horowitz, New York City, and Philip L. Weinstein for appellant., Charles J. Hynes, District Attorney of Kings County, Brooklyn (Andrea G. Klineman and Roseann B. MacKechnie of counsel), for respondent.
Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick Concur.
Cited by 66 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that the People’s entire case was based upon circumstantial evidence and that the trial court erred in declining the defense request for a[*889] circumstantial evidence charge. Defendant was not observed in actual physical possession of the drugs and weapons found in his apartment. Therefore, his criminal responsibility for the possessory crimes charged against him had to be based upon his "exercise [of] dominion or control over” the contraband (Penal Law § 10.00 [8]). Although there may have been direct evidence of defendant’s dominion and control over his apartment from defendant’s observed presence in the apartment and his admissions that he lived there, there was no direct evidence of his dominion or control over the drugs and weapons found in the apartment. The direct evidence of defendant’s dominion and control over the apartment, as well as the remaining incriminating evidence against him such as his flight from the premises, the gun which fell to the floor at the window through which he fled and the presence of his passport along with weapons in the locked safe in the closet of his apartment, all required the drawing of an additional inference to establish defendant’s dominion and control over the contraband and, thus, was circumstantial (cf., People v Daddona, 81 NY2d 990, 992).

The circumstantial evidence charge is a "material legal principle[ ]” required by CPL 300.10 (2) when the People’s evidence is entirely circumstantial. In this case, however, the evidence that defendant at least shared dominion and control over the weapons and drugs was overwhelming and there simply is no reasonable possibility, let alone significant probability that the jury would have acquitted here if the circumstantial evidence charge had been given (People v Crimmins, 36 NY2d 230, 242). Thus, we agree with the Appellate Division in concluding that, in light of the People’s proof, this represents the exceptional case where the failure to give the circumstantial evidence charge was harmless error (see, CPL 470.05 [1]). Contrary to defendant’s contention, the failure to so instruct did not deprive defendant of his right to a jury trial under the Federal and State Constitutions (US Const Sixth Amend; NY Const, art I, § 2). Under the circumstances presented in this case, the inference of defendant’s constructive possession of the contraband was the only reasonable inference.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.