Enhances the definition of dangerous contraband

This bill would amend the Penal Law to enhance the definition of dangerous contraband that may not be introduced into or possessed in a detention facility by providing a non-exclusive list of dangerous contraband.

Summary of Provisions:

Section one of the bill would amend subdivision four of Penal Law 205.00, which contains the definition of the term "dangerous contraband" as it relates to offenses committed when someone is in custody. The bill would augment the existing definition by adding a nonexclusive list of items that are to be considered dangerous contraband, including: a gun, a knife, a cell phone or other wireless communication device, a laptop computer, a device with global positioning capabilities, a map, a camera or an explosive.

Section two of the bill provides the effective date.

Existing Law:

Under Penal Law § 205.20, it is the class A misdemeanor of Promoting Prison Contraband in the Second Degree when a person introduces "contraband" into a detention facility or possesses "contraband" in such a facility. Under Penal Law § 205.00(3), "contraband" means any article that a person confined in a detention facility is prohibited from obtaining or possessing by any statute, rule, regulation or order.

Introducing "dangerous contraband" into a detention facility, or possessing "dangerous contraband" in such a facility is the class D felony of Promoting Prison Contraband in the First Degree under Penal Law § 205.25. "Dangerous contraband" means contraband that is capable of a use that may endanger the safety or security of a detention facility or any person therein.

Prior Legislative History:

This bill was introduced in the Senate in 2012 (S.6844); it was not introduced in the Assembly. Similar bills were introduced in 2009-10 (S.5865) and 2011 (S.3782). Those bills addressed only the issue of defining a telecommunication or electronic recording device for purposes of dangerous contraband.

Statement in Support:

There is a distinction between "contraband" and "dangerous contraband." According to the Court of Appeals in People v. Finely, 10 N.Y.3d 647 (2008), the determination of whether a particular item is contraband or dangerous contraband is based on the "substantial probability that the item will be used in a manner that is likely to

cause death or other serious injury, to facilitate escape, or to bring about other major threats to a detention facility's institutional safety or security." Items such as knives, guns or explosives are easily and readily identified as dangerous contraband. However, items such as cell phones, laptop computers, global positioning devices, maps or cameras are just as dangerous, but are not always recognized as such. These are tools easily used to facilitate an escape or other illegal activity.

Society has experienced a proliferation in the use of electronic media in everyday living. The equipment is more sophisticated than ever before and while a tremendous boon to our daily living, it has also created a tremendous risk for the correctional system in our country and abroad. Inmates in possession of this technology can circumvent the safeguards and controls imposed on their communications. Correctional systems monitor the content of calls and the numbers dialed to ensure safety. However, an inmate could utilize a cell phone in real time to organize an escape, or a laptop computer to run an illegal organization. These are not just possibilities, but very real events. In Brazil inmates used a cell phone to organize a riot and in Canada an inmate used a cell phone to run a drug ring.

The law cannot anticipate every item that is dangerous contraband, yet there are certain items that are so clearly capable of causing death or facilitating an escape that they can be easily identified. The intent of the bill is not to list every item, but to eliminate any ambiguity regarding certain items that are indisputably dangerous when in a correctional system. While the bill could have been drafted to address only the issue of telecommunication devices, it was determined that it would be more illustrative to provide a non-exclusive list of the types of items that are definitively dangerous contraband, such as a gun, a knife, a cell phone or other wireless communication device, a laptop computer, any device with global position capabilities, a map, a camera or an explosive.

Budget Implications:

None.

Effective Date:

This bill would take effect 30 days after it becomes a law.