People v. Finley

• Decision Date: 10 June 2008
• Docket Number: 88.,87.
• Citation: 10 N.Y.3d 647,891 N.E.2d 1165
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert FINLEY, Appellant. The People of the State of New York, Respondent, v. Kyle Salters, Appellant.
• Court: New York Court of Appeals Court of Appeals

891 N.E.2d 1165

10 N.Y.3d 647

The PEOPLE of the State of New York, Respondent, v. Robert FINLEY, Appellant.

The People of the State of New York, Respondent, v. Kyle Salters, Appellant.

87.

88.

Court of Appeals of New York.

June 10, 2008.

Timothy Patrick Murphy, Williamsville, for appellant in the first above-entitled action.

Joseph V. Cardone, District Attorney, Albion, for respondent in the first above-entitled action.

New York State Defenders Association, Albany (Alfred O'Connor of counsel), for appellant in the second above-entitled action.

Glenn MacNeill, Assistant District Attorney, Malone, for respondent in the second above-entitled action.

OPINION OF THE COURT

CIPARICK, J.

The issue in each of these appeals by defendants, inmates in New York State detention facilities, is whether small amounts of marihuana were "dangerous contraband" under Penal Law § 205.00(4) and § 205.25(2). We conclude that they were not.

I. People v. Salters

On March 31, 2004, the grand jury of Franklin County issued a two-count indictment charging defendant Salters with attempted promoting prison contraband in the first degree, a class E felony, and fifth-degree conspiracy, a class A misdemeanor (see Penal Law §§ 110.00, 205.25[2]; § 105.05[1]). These charges arose out of an investigation conducted by Investigator Dennis Klose of the Department of Correctional Services (DOCS) Inspector General's Narcotics Unit. While monitoring a phone call between defendant and his girlfriend, Klose heard what he believed was a plan to smuggle narcotics into Bare Hill Correctional Facility, where defendant was incarcerated. On November 16, 2003, prison officials stopped defendant's girlfriend, after she passed through security, and she admitted to concealing marihuana. She was then driven to a nearby State Police barracks, where she surrendered 9.3 grams of marihuana — less than one third of an ounce.

Prior to trial, defendant moved to dismiss the indictment or, alternatively, to reduce the charges to attempted promoting prison contraband in the second degree and sixth-degree conspiracy, both misdemeanors. Relying upon the Appellate Division's decision in People v. McCrae, 297 A.D.2d 878, 747 N.Y.S.2d 399 (3d Dept. 2002), which reasoned that marihuana was dangerous contraband because "the use of illegal drugs by inmates . . . can result in disruptive and dangerous behavior among the inmate population" (id. at 878, 747 N.Y.S.2d 399), Supreme Court declined to dismiss the indictment.

At trial, Senior Investigator James Bezio, who had extensive experience with drug investigations during his 16 years with the Narcotics Unit, testified that 9.3 grams of marihuana is an amount large enough to be distributed to other inmates, which created two possible problems. First, because ingestion of marijuana would alter inmates' mental states, those who took the drug could potentially become involved in altercations or refuse to obey correction officers' orders. Second, if an inmate obtained marihuana from a prison dealer and then refused, or was unable, to pay for it, an inmate-on-inmate assault might occur, possibly resulting in injury to correction officers. Bezio acknowledged on cross-examination that, within the illicit prison barter system, an altercation between inmates could even occur over certain banned perishables, leading guards to become involved and possibly hurt. Indeed, he speculated that "anything that's smuggled into the barter system could be considered dangerous," if the definition of "dangerous" were coextensive with a potential for producing altercations among inmates and prison staff.

At the close of evidence, defendant sought to have the lesser-included misdemeanor — attempted promoting prison contraband in the second degree — submitted to the jury (see Penal Law §§ 110.00, 205.20[2]). Supreme Court denied that request, relying on McCrae. Thereafter, the jury convicted defendant of both charged crimes, and Supreme Court sentenced him to an indeterminate term of 2 to 4 years on the felony attempted promoting prison contraband count and a concurrent one-year determinate sentence on the conspiracy count, to run consecutively to the term defendant was then serving.

The Appellate Division affirmed, concluding that Bezio's testimony was legally sufficient to support the felony contraband conviction because it provided "facility-specific proof" that 9.3 grams of marihuana is an amount that could be sold or distributed, thereby potentially precipitating altercations and disobedience that could "endanger[ ] the security and safety of staff and inmates" (30 A.D.3d 903, 905, 817 N.Y.S.2d 743 [2006]). We now modify and remit to Supreme Court for resentencing.

II. People v. Finley

On June 24, 2004, defendant and four other inmates were standing near the "A-Block" of Orleans Correctional Facility. That area of the prison was off-limits to defendant and one of his companions, an inmate known as "Midget." Observing defendant and Midget, Correction Officer Baptiste, a 19-year veteran with 17 years' experience in the Orleans facility, determined that the two were "smuggling stuff or trying to pass something." In response, the officer directed the 60 inmates that he was charged with supervising to the inside portion of A-Block. Those inmates remained there unsupervised during the course of Officer Baptiste's encounter with defendant.

At Baptiste's request, defendant produced his prison identification card from one of his pockets. A "wad of toilet paper" also emerged from the pocket and defendant threw it to the ground. Baptiste then ordered defendant to put his hands against the wall in preparation for a "pat-frisk." During the frisk, defendant took his hands off the wall and pointed toward the discarded wad. In response to defendant's pointing, Midget nodded his head as if to indicate "yes." Observing this apparent communication, Officer Baptiste questioned defendant about the wad. When defendant claimed to lack knowledge of it, Baptiste turned his back to defendant and retrieved the wad from the ground. The wad contained "[t]hree joints," one of which subsequently tested positive for marihuana. Other officers then handcuffed defendant and removed him from A-Block.

On January 24, 2005, the grand jury of Orleans County handed down an indictment charging defendant with, as relevant here, one count of promoting prison contraband in the first degree, a class D felony. To establish the dangerous nature of marihuana at defendant's trial, the People called an expert witness, Vernon N. Fonda, a Deputy Inspector General in DOCS's Narcotics Unit.

Inspector Fonda, who has served in various investigative capacities with the Narcotics Unit since 1993, opined that marihuana's status as an illegal and highly-prized prison commodity caused negative effects on prison safety and security.

He testified that defendant's possession of marihuana created a dangerous situation because it required Baptiste to leave the inmates in his care unsupervised and exposed him to a possible assault by defendant.¹ This potential danger was only heightened because defendant might have been acting "under the influence" of marihuana. Further, by throwing the wad containing the three joints to the ground, defendant created a possible danger that another inmate might grab it and flee, forcing Baptiste to leave A-Block unattended. Discarding the marihuana also exposed Baptiste to a potential attack from the rear during the time he was busy retrieving it.

On cross-examination, Fonda acknowledged that the presence of contraband food could also create a "dangerous situation" inside a prison, "if [inmates have] gotten into arguments over food" that "escalate[d] into . . . a fight or some type of altercation." In addition, Fonda agreed that a correction officer's supervision of 60 inmates "[a]bsolutely" has a certain degree of inherent danger. And he indicated that "in [a] broad pen[o]logical sense" the presence of marihuana in a prison is "always dangerous."

Defendant moved to dismiss the People's case on the ground of insufficient evidence, arguing that the prosecution failed to prove that the particular amount of marihuana at issue posed a danger to the Orleans facility. County Court denied the motion, reasoning that the term "dangerous," as used in Penal Law § 205.00(4) and § 205.25(2), "means the potential for violence and problems." County Court did hold, however, that defendant was entitled to a jury charge on the lesser-included misdemeanor of promoting prison contraband in the second degree. The jury convicted defendant of the felony promotion of contraband offense. He was sentenced as a second felony offender to an indeterminate prison term of 3 to 6 years to run consecutive to his previously imposed sentence.

The Appellate Division affirmed. Citing Salters, the court held that Fonda's testimony regarding the potential risks created when defendant threw the concealed marihuana to the ground was legally sufficient to support the felony promotion of contraband conviction because the testimony provided "specific evidence" that "the particular marihuana that was possessed by . . . defendant endangered the safety of the facility" (see 42 A.D.3d 917, 919, 839 N.Y.S.2d 393 [2007] [internal quotation marks and brackets omitted]). We now modify and remit to County Court for resentencing.

III.

Significantly, the Penal Law distinguishes between "contraband" and "dangerous contraband." "Contraband" is broadly defined as "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order" (Penal Law § 205.00[3]). Within this wide-ranging category of prohibited items, the Legislature has set apart for special reprobation "dangerous contraband," or "contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein" (see Penal Law §...