This week's Daily Record column is entitled "Unlikely Inferences Do Not a Felony Make."
Unlikely Inferences Do Not a Felony Make
Last week the New York State Court of Appeals handed down its decision in People v. Finley,2008 WL 2338613.
At issue was whether small amounts of marijuana smuggled into New York correctional facilities by inmates constituted “dangerous contraband” pursuant to Penal Law §§ 205.00(4) and 205.25(2), thus rising to the level of a felony.
The court considered appeals from decisions of the Third and Fourth Departments, both of which concluded the possession of marijuana did, in fact, amount to felonious conduct, even though the amounts possessed were relatively small.
The Court of Appeals framed the issue as follows: “[W]hether the imposition of felony consequences, based upon possession of small amounts of marihuana, which would constitute a violation outside of prison (see Penal Law §§ 221.05, 221.10  [absent aggravating circumstances, not present here, possession of 25 grams or less of marihuana is a non-criminal violation]), comports with the Legislature’s intent as codified in Penal Law §§ 205.00 (4) and 205.25 (2).”
In reaching its determination, the court first noted the Penal Law created a distinction between “contraband” and “dangerous contraband.”
The possession of ordinary contraband, simply a misdemeanor, is 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.” Possession of “dangerous contraband,” on the other hand, is defined as that “which is capable of endanger[ing] the safety or security of a detention facility or any person therein.”
In the underlying cases, the Appellate Divisions concluded the inmates’ possession of a small amount of marijuana created a potentially dangerous condition, which could feasibly result in disobedience and altercations among inmates and with correctional officers.
The Court of Appeals disagreed, based in part on the legislative intent behind the passage of the Penal Law provisions at issue.
The court noted that, by enacting legislation creating levels of penalies for the possession of “contraband” as opposed to “dangerous contraband,” the Legislature obviously intended to differentiate between the two.
The court stated that: “Under the people’s view, the Legislature intended a definition of dangerous contraband so broad that it would capture any item that, when present in a detention facility, could lead to altercations and inmate disobedience. But the fatal flaw in the people’s argument is that their proposed construction would effectively nullify the misdemeanor crime of promoting contraband in the second degree. ... If, as the Appellate Divisions here held, testimony as to these possibly pernicious secondary effects were sufficient to establish the felony promoting contraband offense then every item of contraband could be classified as dangerous.”
Finally, the court concluded contraband is dangerous only if there is a substantial probability the item will be used in a manner likely to cause death or serious injury; facilitate an escape or pose a threat to institutional safety or security.
This is the only conclusion that makes sense.
I reviewed the Appellate Division decisions last year when preparing the supplement to “Criminal Law in New York, Fourth Edition,” a Thomson-West treatise that I co-author with Judge Karen Morris and Gary Muldoon.
I recall thinking the Appellate Divisions’ conclusions were somewhat attenuated from reality, given the possibility of institutional chaos resulting from possession of such a small amount of marijuana is remote, at best.
This latest decision, therefore, is a pleasant and unexpected surprise. After all, it’s not every day the highest court in New York agrees with the conclusions of a criminal defense attorney such as myself.