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Cell phones are “Dangerous Contraband” for New York Felony Contraband Possession

Cell phones are “Dangerous Contraband” for New York Felony Contraband Possession

by Mark Wilson

On May 8, 2014, a New York Supreme Court Appellate Division held that cell phones constitute “dangerous contraband” under the state’s felony contraband possession statute.

Pursuant to New York law, a prisoner’s possession of non-dangerous contraband may result in a misdemeanor criminal conviction, punishable by up to a year in jail. “Dangerous contraband” possession, however, can result in a felony conviction for first-degree promoting prison contraband.

Dangerous contraband is defined as “contraband which is capable of such uses as may endanger the safety and security of a detention facility or any person therein.” In People v. Finley, 10 N.Y.3d 647 (N.Y. 2008) [PLN, Oct. 2009, p.34], the New York Court of Appeals held that “the test for determining whether an item is dangerous contraband is whether its particular 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.”

Finley held that “the distinction between contraband and dangerous contraband” does not turn upon “whether an item is legal or illegal outside of prison.” An item also need not be inherently dangerous to qualify as dangerous contraband. However, if it is not, the government “must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility.”

During a September 9, 2009 tier check, a New York prison guard observed a towel covering the cell window of prisoner Barry Green, who was serving a sentence of 25-years-to-life for murder.

When the guard stopped to investigate, he heard Green, who was alone in the cell, engaged in “a one-sided, business-like conversation.” Green was then removed from his cell, and guards discovered a cell phone charger on his bed during a search. A password and several phone numbers were stuffed into the toe of his shoe.

Green was sitting and walking oddly. Upon being strip searched, he eventually surrendered a cell phone hidden in his buttocks. The password discovered in his cell unlocked the phone, which Green admitted to having purchased for $500.

A grand jury indicted Green on a felony charge of first-degree promoting prison contraband and he was found guilty.

“This court fully finds that as a matter of law a cell phone, no matter how a defendant may use it, is inherently dangerous,” declared Judge Frank LaBuda when sentencing Green to a consecutive prison term of 3-to-6 years.

Green challenged his conviction and the Appellate Division observed that “the narrow question presented” was “whether there is legally sufficient evidence to support the jury’s finding that defendant possessed dangerous contraband within the meaning of Penal Law §§ 205.00(4) and 205.25(2).”

Based upon “the detailed and specific testimony offered by the supervising [prison] superintendent,” who had 33 years of experience, the court stated it was “satisfied that the People met their burden of establishing that the cell phone seized from defendant constituted dangerous contraband under the test set forth in Finley.” See: People v. Green, 119 A.D.3d 23 (N.Y. App. Div. 3d Dep’t 2014), leave to appeal denied.

Prison officials applauded the decision. “It is gratifying that the Appellate Division acknowledges that a cell phone, a common item outside prison, inside a facility, and for a host of reasons, should be considered a dangerous weapon,” remarked Anthony J. Annucci, Acting Commissioner of the New York Department of Corrections and Community Supervision. “This decision should greatly assist the department in its effort to run safe and secure institutions, serving as a strong deterrent against the smuggling of cell phones by inmates.”

Of course, this also means that guards can face felony charges for promoting dangerous contraband, by smuggling and selling cell phones to prisoners.


Additional source: New York Law Journal


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Related legal case

People v. Green