PEOPLE v. COLE

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Appellant, v. John W. COLE, Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. Thomas E. Moran, District Attorney, Geneseo (Jennifer M. Noto of Counsel), for Appellant. Scott D. Cannon, Geneseo, for Defendant-Respondent.

The People appeal from an order that, upon that part of defendant's omnibus motion seeking to dismiss the indictment for legal insufficiency of the evidence before the grand jury, reduced the first count of the indictment from promoting prison contraband in the first degree (Penal Law § 205.25[2] ) to promoting prison contraband in the second degree (§ 205.20[2] ).   Promoting prison contraband in the first degree involves “dangerous contraband” (§ 205.25 [2] ), and we agree with County Court that the evidence before the grand jury is legally insufficient to establish that the small quantity of marihuana possessed by defendant was dangerous contraband.   That term is defined in Penal Law § 205.00(4) as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein,” and “[s]pecific proof is needed regarding how the particular marihuana that was possessed by ․ defendant endangered the safety of the facility” (People v. Stanley, 19 A.D.3d 1152, 1153, 796 N.Y.S.2d 767, lv. denied 5 N.Y.3d 856, 806 N.Y.S.2d 176, 840 N.E.2d 145;  see People v. Brown, 2 A.D.3d 1216, 1217, 769 N.Y.S.2d 657, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198).   There is no such proof in this case (see Stanley, 19 A.D.3d at 1153, 796 N.Y.S.2d 767;  Brown, 2 A.D.3d at 1217, 769 N.Y.S.2d 657;  see also People v. Martinez, 34 A.D.3d 859, 823 N.Y.S.2d 574;  cf. People v. Salters, 30 A.D.3d 903, 904-905, 817 N.Y.S.2d 743), and thus we conclude that the count was properly reduced (see Stanley, 19 A.D.3d at 1153, 796 N.Y.S.2d 767).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: