People v. Simmons

• Decision Date: 12 June 2020
• Docket Number: 1019,KA 18-02434
• Citation: 125 N.Y.S.3d 504,184 A.D.3d 326
• Parties: The PEOPLE of the State of New York, Respondent, v. Marzel S. SIMMONS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 326
125 N.Y.S.3d 504

The PEOPLE of the State of New York, Respondent,
v.
Marzel S. SIMMONS, Defendant-Appellant.

1019
KA 18-02434

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

Entered June 12, 2020

TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT-APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (ZAKARY I. WOODRUFF OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

Opinion by Troutman, J.:

It is hereby ORDERED that the judgment so appealed from is modified as a matter of discretion in the interest of justice and on the law by reducing the conviction of promoting prison contraband in the first degree ( Penal Law § 205.25 [1] ) under count four of the indictment to promoting prison contraband in the second degree (§ 205.20 [1] ) and vacating the sentence imposed on that count, and as modified the judgment is affirmed and the matter is remitted to Jefferson County Court for sentencing on that conviction.

125 N.Y.S.3d 507

184 A.D.3d 327

On appeal from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and promoting prison contraband in the first degree ( § 205.25 [1] ), defendant contends that the evidence is legally insufficient to establish that the three baggies of cocaine found on his person constituted dangerous contraband. We agree. Although defendant failed to preserve that contention for our review (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). We note, in any event, that we must " ‘necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Cartagena , 149 A.D.3d 1518, 1518, 54 N.Y.S.3d 230 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017], reconsideration denied 30 N.Y.3d 1018, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ).

"A person is guilty of promoting prison contraband in the first degree when ... [that person] knowingly and unlawfully introduces any dangerous contraband into a detention facility" ( Penal Law § 205.25 [1] ). "Dangerous contraband" is defined as any contraband that is "capable of such use as may endanger the safety or security of a detention facility or any person therein" (§ 205.00 [4] ). "[T]he test for determining whether an item is dangerous contraband is whether its particular

184 A.D.3d 328

characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security" ( People v. Finley , 10 N.Y.3d 647, 657, 862 N.Y.S.2d 1, 891 N.E.2d 1165 [2008] ). " ‘[W]eapons, tools, explosives and similar articles likely to facilitate escape or cause disorder, damage or physical injury are examples of dangerous contraband,’ " whereas an " ‘alcoholic beverage is an example of [ordinary] contraband’ " ( id. at 656-657, 862 N.Y.S.2d 1, 891 N.E.2d 1165 ). Drugs, unlike weapons, are not inherently dangerous, and thus general penological concerns about the drug possessed that "are not addressed to the specific use and effects of the particular drug are insufficient to meet the definition of dangerous contraband" ( People v. Flagg , 167 A.D.3d 165, 169, 87 N.Y.S.3d 781 [4th Dept. 2018] ).

In reviewing a defendant's challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and ask 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. Acosta , 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 [1993] [internal quotation marks omitted]; see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). "A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" ( Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; see People v. Li , 34 N.Y.3d 357, 363, 117 N.Y.S.3d 642, 140 N.E.3d 965 [2019] ). In other words, our role "is simply to determine whether enough evidence has been presented so that the resulting verdict was lawful" ( Acosta , 80 N.Y.2d at 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 ; see

125 N.Y.S.3d 508

Li , 34 N.Y.3d at 363, 117 N.Y.S.3d 642, 140 N.E.3d 965 ). Here, the only evidence of the dangerousness of the cocaine is the testimony of one of the correction officers who strip-searched defendant: "Drugs in the facility can cause overdoses, fights and trips to the hospital that are unnecessary." There is no material distinction between that testimony and the evidence that we found to be legally insufficient in Flagg , and thus we conclude that the evidence is legally insufficient to establish that the cocaine was dangerous contraband (see 167 A.D.3d at 168, 87 N.Y.S.3d 781 ).

Central to our dissenting colleague's analysis is a distinction between narcotic and non-narcotic controlled substances. The

184 A.D.3d 329

unstated premise is that cocaine is classified as a narcotic because it is inherently dangerous. We respectfully disagree with that premise. Cocaine may be unhealthy, but it is not a narcotic, at least not from a scientific, medical, or pharmacological viewpoint (see Carl B. Schultz, Note, Statutory Classification of Cocaine as a Narcotic: An Illogical Anachronism , 9 Am J L & Med 225, 226-227 [1983]). Cocaine is classified by law as a narcotic for economic reasons, not because of any specific danger to users (see People v. McCarty , 86 Ill 2d 247, 255, 56 Ill.Dec. 67, 427 N.E.2d 147, 151 [1981] ["Cocaine and heroin are by far the most expensive and most profitable of the illicit drugs ... (O)ne of the primary purposes of the Act is to ‘penalize most heavily the illicit traffickers or profiteers of controlled substances’ ... The State urges that these facts provide a rational basis for treating cocaine more severely than ... (other) nonnarcotic(s)"]; see generally People v. Broadie , 37 N.Y.2d 100, 112, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ).

Nevertheless, most Americans still think of all illegal drugs as "narcotics," even though narcotics are properly defined in a pharmacological sense as opium, its derivatives such as heroin, and its synthetic substitutes such as fentanyl (see United States Drug Enforcement Administration, http://www.dea.gov/taxonomy/term/331 [last accessed March 27, 2020] ). " ‘Old drug myths apparently die remarkably hard’ " (Schultz at 230). Americans have all kinds of ideas about what certain drugs are and what those drugs do. Those ideas are informed by the news, television, Hollywood films, personal experience, politics, parental advice, and the anecdotes of friends. We must be careful not to leave determinations of dangerousness to the preconceptions of the fact-finder. That is why evidence of the "specific use and effects of the particular drug" must be required ( Flagg , 167 A.D.3d at 169, 87 N.Y.S.3d 781 ).

Our dissenting colleague highlights testimony that correction officers were concerned that defendant might swallow the cocaine, but that serves only to underscore our point. It is common knowledge that drugs or alcohol, if consumed, have the potential to cause overdose resulting in death. Certainly, a person can die from an excessive dose of cocaine. But, here, the People offered no evidence of the specific quantity of the cocaine found on defendant's person, much less the effect that cocaine in such a quantity would have on defendant's health. Quite the contrary. The record casts doubt on whether the cocaine would have had any effect at all on defendant's health because the

184 A.D.3d 330

cocaine was bagged and not necessarily in consumable form. How dangerous would it have been for defendant to have swallowed cocaine in the quantity and the form that the police recovered? How likely is it that he would have suffered a medical emergency? We cannot say.

125 N.Y.S.3d 509

One last point is worth emphasizing. Anyone caught possessing cocaine in prison is already subject to criminal liability and rather severe penalties for possession under Penal Law article 220. A charge of promoting prison...