People v. Brown

• Decision Date: 31 December 2003
• Docket Number: 14474.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 1216

769 N.Y.S.2d 657

2003 NY Slip Op 19907

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL BROWN, Appellant.

14474.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 31, 2003.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered November 13, 2001, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

Lahtinen, J.

In May 2000, four small marihuana cigarettes, known in street parlance as "pin joints," were discovered in the cell of an inmate at the St. Lawrence County Correctional Facility. The pin joints allegedly had been obtained by the inmate from defendant, who was also an inmate at the County facility, in exchange for cigarettes. During an ensuing investigation, defendant turned over to a correction officer a substance in a small package that later tested positive as less than one gram of marihuana. Defendant was indicted for promoting prison contraband in the first degree, a class D felony, and the misdemeanor of criminal sale of marihuana in the fourth degree. After lengthy deliberations, a jury found him guilty of promoting prison contraband in the first degree and not guilty of criminal sale of marihuana in the fourth degree. He was sentenced as a second felony offender to 2½ to 5 years in prison. Defendant appeals.

Defendant initially argues that the evidence was legally insufficient to establish that the marihuana he possessed constituted "dangerous contraband," which is a necessary element of the crime of promoting prison contraband in the first degree (see Penal Law § 205.00 [4]; § 205.25).^* On a challenge for legal sufficiency, the evidence is viewed in the light most favorable to the prosecution (see People v Carroll, 95 NY2d 375, 382 [2000]). Dangerous contraband is statutorily defined as "contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein" (Penal Law § 205.00 [4]). Here, the People attempted to prove that this marihuana constituted dangerous contraband at the County facility primarily through the testimony of Vernon Fonda, a senior investigator from the Department of Correctional Services. When initially asked to describe the potential safety concerns or security problems, Fonda responded, "No one in there is in there for—in the state prison system for less than a felony, ... [s]o, consequently, when you are dealing with that type of group, you want to make sure that those people have their wits about them for the most part." Since inmates in a county facility may include those convicted of misdemeanors as well as those charged, but not yet convicted of any crime, Fonda's characterization of the inmate population was clearly incorrect. Later in his testimony he was asked whether marihuana would be dangerous in the St. Lawrence County facility and his response, given over defense counsel's objection, addressed only broad penological concerns. While there is precedent indicating that a controlled substance can constitute dangerous contraband in some circumstances (see People v McCrae, 297 AD2d 878 [2002]; People v Rivera, 221 AD2d 380 [1995], lv denied 87 NY2d 977 [1996]; People v Watson, 162 AD2d 1015 [1990], appeal dismissed 77 NY2d 857 [1991]), review of this record fails to reveal competent and specific proof—even when viewed in the light most favorable to the prosecution—that defendant's possession of marihuana endangered safety or security at the St. Lawrence County facility.

To be sure, the danger posed to a facility from certain types of contraband is apparent from the nature of the item (see e.g. People v Anderson, 299 AD2d 578 [2002], lv denied 99 NY2d 580 [2003] [razor blade-type weapon]; People v Mendoza, 244 AD2d 815, 816 [1997], lv denied 91 NY2d 943 [1998] [shank]; People v Hammond, 132 AD2d 849 [1987], lv denied 70 NY2d 875 [1987] [sharpened metal melted into a pen]). Such a conclusion cannot, however, be drawn merely from the presence of a very small amount of marihuana and general concerns about the marihuana that are not addressed to the specific facts of the particular situation. We conclude that the speculative and conclusory testimony provided at trial was legally insufficient to establish that the marihuana turned over by defendant met the definition of dangerous contraband. Accordingly, pursuant to CPL 470.15 (2) (a), we reduce defendant's conviction to promoting prison contraband in the second degree (see People v Colantonio, 277 AD2d 498, 500 [2000...