Marijuana as Prison Contraband: Who Knew Marihuana was so Dangerous?

The vast majority of those involved in New York’s criminal justice system, from the officers serving the NYPD and Assistant District Attorneys to judges and criminal defense lawyers, would likely not place marijuana (“marihuana” in the New York Penal Code) in the same realm of contraband such as heroin, cocaine and other controlled substances. While there certainly could be many vigorous debates on the legalization of marijuana, the bottom line is that possessing certain aggregated quantities or possessing any amount of marihuana in public is a crime. The question that arises in some circumstances, however, is not whether possession is illegal, but how dangerous that possession of marijuana can be.

Although the debate over marijuana’s dangers makes for great dinnertime conversations, “danger” or “dangerous” is not an element of Criminal Possession of Marihuana. That’s right. Prosecutors need not prove beyond a reasonable doubt that Mr. Green Leaf is dangerous in any capacity. That is not to say, however, that “danger” is not always irrelevant. When marihuana possession is the central evidence or underlying criminal activity in an arrest for Promoting Prison Contraband, the degree of “danger” is critical.

According to New York Penal Law 205.25(1), Promoting Prison Contraband in the First Degree, it is a felony punishable by as much as seven years in prison if you “knowingly and unlawfully any dangerous contraband into a detention facility.” Well, it doesn’t take a legal scholar to recognize marijuana is certainly “contraband” and a prison is a “detention facility,” but what and how does the contraband become “dangerous?” Need it be a blade, firearm or some other type of weapon? Fortunately, I have good news and I won’t leave you hangin’…People v. Ariosa, 2012 NY Slip Op 08182, answers this question.

The main thrust of Ariosa was wether or not the importing and possession of 29 grams marihuana at a correctional facility constituted “dangerous contraband” within the meaning of NY PL 205.25(1). Out of the gate, the Court examined New York Penal Law 205.00(4). That section of the Penal Law defines “dangerous contraband” as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” Just like almost every definition found in New York’s Penal Law, the statute only takes us so far. The cases and legal decisions that finely tune the law often hold the answer to our questions. In this context, People v Finley, 10 N.Y.3d 647, 657 (2008) further defines when contraband is considered dangerous. There an the Court of Appeals stated 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.”

Even armed with this particular decision from New York’s highest court, a criminal attorney or prosecutor may still be unsure as to when contraband becomes dangerous and whether marihuana, unlike heroin, a knife or even a shard of glass all fall in this category. Again, Ariosa answers the question. Instead of molding the decision into my own words, the following excerpt is both clear and concise:

“[T]here is ample evidence to support a finding that the 29 grams of marihuana, which was sent to another inmate at the prison by defendant’s wife, constituted dangerous contraband. While the Court of Appeals indeed has held that ‘small amounts of marihuana’ will not qualify as dangerous contraband (People v Finley, 10 NY3d at 658; see Penal Law ยง 221.05 [possession of less than 25 grams of marihuana constitutes a noncriminal violation]),” what happens if that amount of marijuana constitutes criminal possession?

Taking its analysis even further than merely addressing the difference between non criminal possession of marijuana and criminal possession of the same (New York Penal Law 221.05. vs. New York Penal Law 221.10), the Court examined the secondary and collateral consequences and activities associated with the offense. “[A] review of defendant’s phone records, actual telephone calls and inmate account, together with an examination of facility disbursement records, revealed that defendant’s wife received a number of disbursements from various inmates at the facility — to whom she had no discernible connection — and that she, in turn, deposited funds in excess of $10,000 into defendant’s inmate account. Further, the trial testimony established that drug trafficking in prisons often is controlled by groups that are willing to resort to violence in order to get paid, leads to dangerous confrontations between fellow inmates — or between inmates and facility staff — and ‘creates an undercurrent [of violence and retaliation] [with]in [a] facility that cannot be monitored.’ Such proof, in our view, demonstrates the existence of a well-organized scheme to introduce a misdemeanor quantity of marihuana into a maximum security facility with the intent to distribute such marihuana to other inmates and ‘reveal[s] a substantial probability that the [marihuana would] be used in a manner likely to cause … serious injury or bring about other major threats to [Great Meadow’s] institutional safety or security” (People v Cooper, 67 AD3d at 1256-1257).

And you thought smoking a joint wasn’t so bad….guess you were wrong, huh?!? All kidding aside, Ariosa is a very interesting case. “Dangerous contraband” goes well beyond what non-criminal lawyers and regular joes may consider hazardous. Yes, shaved metal may be used as a shank. Yet, according to the courts, the secondary activities of the marijuana trade make the comparatively minor offense of its possession into a fairly serious felony.

To educate yourself about New York Marijuana and Marihuana Possession laws such as New York Penal Law sections 221.10 and 221.05, follow the highlighted links. To read about the more serious New York drug crimes, follow the respective links for such crimes as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, and other felony offenses.

The New York criminal lawyers at Crotty Saland PC represent clients in New York narcotics, controlled substance and marihuana arrests. Before establishing the criminal defense firm, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office.

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