Category Archives: Penal Law

“Dangerous Contraband”: What is it?

In People v. Flagg (4th Dept. 11/16/2018), the Fourth Department considered a defendant’s appeal despite the lack of preservation and expounded upon what constitutes “dangerous contraband” in a prison.

At the lower court, the defendant was convicted  by a jury of Promoting Prison Contraband 1° and CPCS 7°. These convictions arose after correction officers obtained a disposable glove containing four Tramadol pills from the defendant’s possession, while he was incarcerated at a local jail.

For the crime of Promoting Prison Contraband 1º, the People were required to prove that the defendant was (1) confined in a detention facility, and (2) knowingly and unlawfully made, obtained, or possessed any “dangerous contraband.” Dangerous contraband is defined by the Penal Law as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” The test that the Court of Appeals developed in People v. Finley to determine whether a substance is dangerous 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.”

On appeal, the defendant contended that there was legally insufficient evidence to establish that the Tramadol pills were “dangerous.” Although defense counsel moved for a dismissal, the Court noted that this was not enough to preserve the issue for review, but considered the defendant’s appeal in the interest of justice.

The People presented testimony from corrections officers that the pills were dangerous because inmates will fight over the drugs and inmates will also get high and try to fight the staff, or attack other inmates. Additionally, a Sheriff’s detective testified that if not prescribed to the person who was taking the pills, it could cause the person who ingested the pill’s death.

The Court found that this testimony was only discussing broad penological concerns and was speculative and conclusory. The evidence did not establish a substantial probability of a major threat to the facility, or death or serious injury. Specifically, the Court found that there was no specific evidence regarding the dosage of Tramadol or what it would do if ingested by an individual. Thus, the Court found that the People did not establish the “dangerousness” of the pills possessed by the defendant and therefore, the convicted should be reduced to Promoting Prison Contraband 2°.

Further, the Court noted that drugs in it of themselves are not inherently dangerous and the specific use and effects are necessary to show whether or not a drug is dangerous. The Court stated the determination of what types and quantities of drugs are considered dangerous is best left to the legislature. (JC)

Old Enough to Know Better, But Not Enough to Warrant a 35-Year Sentence

The Fourth Department in People v. Jones (4th Dept. 11/9/2018) considered whether it should, in its discretion, override the lower court’s decision on two matters: (1) whether the defendant should have been sentenced as a youth offender or as an adult, and (2) whether the sentence imposed was too harsh and excessive. The Court ultimately used its authority to amend the lower court’s decision on the second count in the “interest of justice.”

The defendant was convicted of Assault 1º and two counts of CPW 2º; he committed the crimes when he was 18 years old. Although CPL 720.10(3) provides that “a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Therefore, the only relevant mitigating factors related to a CPL 720.10(3), or “eligible youth,” inquiry revolve around the circumstances of the crime itself, such as “a lack of injury to others or evidence that the defendant did not display a weapon during the crime.” Here, the Fourth Department affirmed the lower court’s decision in trying the defendant as an adult rather than an eligible youth because he carried a loaded gun on several occasions and shot a gang member.

Although the Court decided that trying the defendant as an adult was just, it determined that the 35-year sentence imposed on the defendant was too harsh. As a matter of discretion in the interest of justice, the Fourth Department modified the defendant’s sentence to run for an aggregate term of 25 years. The Court contemplated multiple factors in deciding to reduce the sentence; the defendant’s lack of a criminal record, the fact that the victim was attempting to commit an armed robbery of the defendant’s gang members, and the fact that the People offered a plea constituting a 20-year sentence all contributed to the Court’s decision to impose a more lax sentence.

Two judges dissented to the second part of the majority’s opinion; they did not believe the Court should amend the sentence in any way. This decision was not necessary in the “interest of justice.” Although the dissent noted the defendant’s low intellect and rough childhood, it was of paramount significance that the defendant was a dangerous individual who was known to carry a loaded gun. Thus, he should be “locked up for a long time.”

Court of Appeals weighs in on definition of “serious injury”

What type of injury constitutes serious physical injury under New York’s Penal Law? This question of fact depends on the jury and, because of the legal sufficiency standard, Appellate Courts are hard-pressed to change decisions. In People v. Garland (Ct. App. 11/20/2018) (5-2), the defendant fired five shots at a crowd and hit a bystander in the leg. The medical records revealed that the bullet became stuck in the soft tissue near the victim’s femoral artery; the bullet was never removed from his leg because of the medical risks of doing so. Continue reading

Sufficiency of Accusatory Instrument Charging Patronizing a Prostitute 3º

A few days ago, the Court of Appeals reversed the Appellate Term’s decision dismissing an accusatory instrument as jurisdictionally defective.  At issue was whether the term “manual stimulation” in the context of Patronizing a Prostitute 3º was sufficient.

At the Appellate Term, the defendant argued, “the [term] ‘manual stimulation’ he sought could refer to a ‘foot rub, therapeutic massage, chiropractic adjustment, personal training – even an energetic match of thumb wrestling’.”

I think I’ll let the Court of Appeals’ opinion on this issue speak for itself:

The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]). Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” (see Casey, 95 NY2d at 360). The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective.

(LC).

Sufficiently Pleading an Unauthorized Use of a Vehicle Charge

For a misdemeanor complaint to be facially sufficient, the accusatory instrument must provide facts that would establish each element of the crimes being charged. In People v. Bajas (App. Term 2d Dept. 8/31/2018), the Court affirmed the defendant’s conviction,  holding that the allegations in the accusatory instrument sufficiently alleged facts that established the “control or use of [a] vehicle” element of Penal Law § 165.05(1). The case drew a dissent from Judge Weston.

The defendant was arrested after an officer observed the defendant, at 4:24 AM, pull the handle of a 2006 Ford Suburban, enter the vehicle, and rummage through the glove compartment and center console of the Ford Suburban. The defendant was arrested and charged with Unauthorized Use of a Vehicle in the 3°, Attempted Petit Larceny, and Resisting Arrest. During his second court appearance, the defendant pleaded guilty to Unauthorized Use of a Vehicle in the 3° with the understanding that if he successfully completed a drug treatment program, the case would be dismissed. If he was unsuccessful in treatment, the defendant would be sentenced to one year of incarceration to run concurrently with a sentence on a prior, unrelated, felony charge. The defendant did not complete the drug treatment program and was sentenced to imprisonment.

On appeal, defendant contends that his conviction should be reversed because the factual part of the accusatory instrument, which merely alleged that he had entered a vehicle and rummaged through the glove compartment and the center console, did not satisfy the reasonable cause requirement for a misdemeanor complaint charging Unauthorized Use of a Vehicle in the Third degree. A person is guilty of Unauthorized Use of a Vehicle in the 3° when:

[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent.

The broad language of the statute has been interpreted to apply to a person who “enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle.” Entry into a vehicle alone is not enough; there must be some degree of control or use. The court relied on this reasoning for holding that the defendant’s rummaging through the car and center console satisfied the statute.

Judge Weston, on the other hand, would have reversed the judgment, vacated the guilty plea, and dismissed the accusatory instrument. In her dissent, Judge Weston pointed to the majority’s reliance on the Court of Appeals decision in People v. Franov. Franov dealt with an entry into a vehicle where the defendant vandalized and then removed certain automotive parts from the dashboard. Judge Weston believed that merely rummaging through a vehicle does not constitute vandalism, and since there was no allegation in the accusatory instrument of any further action on the part of defendant, in addition to the entry, the statute was not satisfied. Instead, Judge Weston would have the Court follow the same rationale as a similar previously decided case, People v. Gavrilov. This case held that the defendant’s entry into a vehicle and stealing a wallet from inside was not enough to constitute “use or control” of the vehicle for the purposes of the statute. Here, there was not even property taken (MK/LC.