Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered February 23, 2006, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.
Pursuant to CPL 300.50 (2), if the trial court is authorized to submit a lesser included offense, it must do so upon the request of either party. A lesser included offense is authorized when (1) “it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct” and (2) “there [is] a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v Van Norstrand, 85 NY2d 131, 135 [1995]; see People v Barney, 99 NY2d 367, 371 [2003]; People v Henderson, 41 NY2d 233, 235 [1976]). Here, there is no dispute that the first prong of the test is met; the parties’ disagreement centers on whether there is a reasonable view of the evidence that would have permitted the jury to acquit defendant of promoting prison contraband in the first degree while finding him guilty of promoting prison contraband in the second degree.
In determining whether a defendant has established entitlement to a lesser included charge under the second prong of the test, we must view the evidence in the light most favorable to
Turning to the lesser included charge requested herein, we note that the sole distinction between promoting prison contraband in the first and second degrees is that the lesser offense requires only that the inmate knowingly and unlawfully possessed “any contraband” (Penal Law § 205.20 [2]), whereas the greater offense requires, in addition, proof that the contraband was “dangerous” (Penal Law § 205.25 [2]).2 This Court has held that dangerousness within the meaning of the statute is inherent in the very nature of certain items, particularly weapons (see People v Salters, 30 AD3d 903, 904
With respect to marihuana, however, we have held that “the danger posed to a facility from ‘a very small amount of marihuana’ is not as apparent as it is with weapons and, thus, requires ‘competent and specific proof of the danger posed to the security and safety of the particular facility” (People v Salters, supra at 904, quoting People v Brown, supra at 1217-1218; see People v Martinez, 34 AD3d 859, 859 [2006]; see also People v Stanley, supra at 1153; cf. People v McCrae, 297 AD2d 878, 878 [2002], lv denied 1 NY3d 576 [2003]). Evidence of “general concerns about the marihuana that are not addressed to the specific facts of the particular situation” will not be sufficient (People v Brown, supra at 1218). Particularly relevant here, in a case involving attempted promoting prison contraband in the first degree based upon an attempt to possess 9.3 grams of marihuana—an amount that is very close to the 10 grams of marihuana underlying defendant’s conviction—we required “facility-specific proof . . . that defendant’s attempt to possess marihuana at [that] facility ‘endangered] the safety or security of [the] . . . facility or any person therein’ ” (People v Salters, supra at 905 [citation omitted]).
Pursuant to Salters, then, we conclude that “ ‘competent and specific proof of the danger posed to the security and safety of’ Clinton Correctional Facility was required to establish dangerousness and elevate the crime in this case to promoting prison contraband in the first degree (id. at 904). Furthermore, we note that the proof offered to establish dangerousness is found in the testimony of two witnesses, Correction Officer William Bisso and Sergeant Anthony Pavone—the same two witnesses whose testimony was offered to establish that marihuana constitutes “contraband,” the critical element of the lesser offense,
A review of the record reveals that the testimony of Bisso and Pavone on contraband is separate from their testimony regarding dangerousness, and that Bisso’s statements regarding whether marihuana constitutes contraband are grounded in the facility rule book given to inmates. In contrast, the testimony on dangerousness was subjective, at times ambiguous and contradictory, often in the form of speculation or generalities, and failed to distinguish between the 10 grams of marihuana found in defendant’s cell and the 32 grams found in the hallway that defendant was acquitted of possessing. For example, while Bisso—who had 18 years of experience as a correction officer— specifically testified that “even a quarter-ounce which is [seven] grams ... of marihuana” had led to fights within the facility because that amount could be sold at an expensive price therein, he also equated the dangerousness of marihuana to that of “[a]ny item of contraband,” and “some type of substance, an illegal substance.” Further, his explanation of the danger often involved only broad concerns, such as claims that the danger was due primarily to the presence of convicted felons in the prison, and while he deemed the 32 grams of marihuana found in the hallway to be a large quantity, he did not address the 10 grams found in the cell. Similarly, Pavone provided only general testimony that marihuana was dangerous simply because it alters inmate behavior, causes violence sometimes and creates extremely dangerous situations between groups of inmates.
While the foregoing proof—in particular Bisso’s testimony detailing the facility-specific problems caused by as little as seven grams of marihuana—constituted legally sufficient evidence that marihuana constitutes “dangerous contraband” within the meaning of the statute (see People v Salters, 30 AD3d 903, 905 [2006], supra; cf. People v Brown, 2 AD3d 1216, 1217-1218 [2003], supra), viewing the evidence in the light most favorable to defendant, there was a reasonable basis for the jury to differentiate between that portion of the testimony establish
Although defendant’s remaining contentions are largely either patently meritless or rendered academic in light of our remittal for a new trial, two of his contentions warrant further discussion. First, he asserts that his constitutional right to a speedy trial was violated by a 14-month delay in the commencement of the prosecution. Balancing the factors set forth in People v Taranovich (37 NY2d 442, 445 [1975]), however, we conclude that the delay herein did not deprive defendant of his due process rights. In this regard, we note that we have upheld similar delays, the nature of the underlying charge involved the safety and security of a correctional facility, and defendant’s freedom was not curtailed inasmuch as he was already incarcerated for another crime (see People v Coggins, 308 AD2d 635, 635-636 [2003]; see also People v Richardson, 298 AD2d 711, 712 [2002]; People v Diaz, 277 AD2d 723, 724-725 [2000], lv denied 96 NY2d 758 [2001]). We similarly reject defendant’s argument that he was deprived of his right to testify when the charges were presented to a second grand jury, which voted on the superseding indictment at issue in this case. Although the People provided reasonable notice to defendant’s counsel, defendant failed to timely notify the prosecution in writing of his intention to appear before the grand jury in connection with the superseding indictment (see CPL 190.50 [5] [a]; People v Ballard, 13 AD3d 670, 671 [2004], lv denied 4 NY3d 796 [2005]).
Peters, Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Clinton County for a new trial on count three of the indictment.
1.
In this respect, a charge-down analysis is to be distinguished from a legal sufficiency analysis, in which we must view the evidence in the light most favorable to the People (see e.g. People v Santi, 3 NY3d 234, 246 [2004]).
2.
"Dangerous contraband” is defined as “contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein” (Penal Law § 205.00 [4]), while “[contraband” is anything “which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order” (Penal Law § 205.00 [3]).