Last week, I blogged about People v. Osorio (NYC Crim. Ct. 6/21/2011) (Sciarrino, J.), in which the Criminal Court dismissed an accusatory instrument charging the Defendant with Promoting Prison Contraband 2º because Central Booking, which is operated by the police department, is not a "detention facility." The Defendant was caught handing marijuana to another arrestee in Manhattan Central Booking.
I am thinking that there was an alternative basis for dismissal. Penal Law § 15.10 requires, for every crime, the commission of a "voluntary act" or a legally culpable omission. Here, I think a strong argument could be made that there was not a voluntary act. The People's theory for PPC 2º must have been that the Defendant "introduced" marijuana by bringing it into Central Booking.
But, importantly, the Defendant did not enter Central Booking voluntarily. He was brought by the police. While the underlying marijuana possession was illegal (no matter where it occurred), I do not think he could be charged with Promoting Prison Contraband—which depends on the possession being committed in a particular location—when the Defendant was forced into that location. See Martin v. State, 31 Ala. App. 334 (1944) (police push drunk individual onto street and then arrest him for Public Intoxication; held, no voluntary act).
(It is unclear from the accusatory instrument quoted in the court's opinion, but I read the opinion as saying that the Defendant was already in Central booking when the handoff occurred. If this was not the case, and the Defendant was on the outside of the facility or holding pen, then my voluntariness argument would not prevail.) (LC)