What puts a person or entity at risk of prosecution? 

You are at risk for prosecution for promoting prison contraband if you have a hand in introducing contraband into a prison. This applies to both incarcerated and non-incarcerated people. You are at risk for prosecution for this crime if you introduce contraband into a prison, or if you are a prisoner and you possess or create contraband.

The following are examples of situations where charges of promoting prison contraband may be filed:

• If you are a non-incarcerated person who knowingly introduces contraband into a prison.
• If you are an incarcerated person who knowingly makes, possesses, or introduces contraband into a prison.

What is the state statute(s) related to introducing contraband into a prison?

This crime is described in Statutes 205:20 and 205:25 of the New York State Penal Code. According to these statutes, promoting, possessing, or manufacturing contraband in prison is illegal.

Contraband is anything an incarcerated person is not allowed to have in prison, which includes things that no one is allowed to have (such as illegal drugs), as well as things that prisoners are not allowed to have according to prison rules (such as cell phones.)

There are two degrees of promoting contraband in prison. S 205:20 deals with promoting prison contraband in the second degree. This applies to all non-dangerous contraband. S 205:25 deals with promoting contraband in the first degree. This applies to dangerous contraband.

What is Dangerous Contraband? 

“Dangerous contraband” means anything that could be used to endanger anyone in prison or anything that could facilitate an escape. This includes items that could be physically harmful, such as weapons and materials that could be made into weapons, as well as maps and other information about the prison’s architecture.

The category of “dangerous contraband” can also be applied to drugs, especially when the quantity of drugs is large enough to be sold within the prison. There isn’t any definitive, specific list of all the things that are deemed dangerous contraband, so it is generally decided on a case-by-case basis.

The Legal Definition of Promoting Prison Contraband

Promoting prison contraband in the second degree is a Class A Misdemeanor. Promoting prison contraband in the first degree is a Class D Felony.

The “elements” of a crime are the things that the prosecutor must prove in order for you to be found guilty of this offense. To be convicted of promoting prison contraband, the following must be true:

1. You knowingly introduced contraband into prison; or
2. You intentionally created or possessed contraband in prison.

Let’s delve a bit more deeply into these elements of this crime to understand its meaning better.

Element #1: You knowingly introduced contraband into a prison.

The definition of Element #1 is knowingly introducing contraband into a prison.

This means that you introduced contraband into a prison and that we’re aware that you were doing so. This could apply to a non-incarcerated person who brings contraband to prisons, such as a visitor, a guard, or any other accomplice, or to an incarcerated person who receives or creates the contraband.

For this element to be proven, it must be shown beyond a reasonable doubt that you were aware the item was contraband, and that you were aware that you were introducing it into a prison.

• Example: Mabel visited Martin in prison. During the visit, she snuck him a package with a cell phone in it. Even though the cell phone would be allowed outside the prison, it was considered contraband inside the prison.

Additionally, Mabel was aware that cell phones were considered contraband, as evidenced by her sneaking the phone to Martin. She was, therefore, liable for promoting prison contraband.

Element #2: You knowingly possessed or created contraband in prison.

The definition of Element #2 is consciously possessing or manufacturing a contraband item in prison.

This element applies to incarcerated people. When a contraband item is smuggled into a prison, or when a prisoner manufactures a contraband item (for instance, creating a makeshift knife from kitchen utensils), they become liable for a “promoting prison contraband” charge.

• Example: Let’s return to the case of Mabel and Marvin. Once Marvin left the visitation room and brought the cell phone back to his cell, he was in knowing possession of prison contraband and was therefore liable to be charged with promotion of prison contraband.

In order to be convicted of promoting prison contraband in the first degree, an additional element must be proven.

The contraband you introduced, possessed, or created was dangerous.

Element #1: The contraband was dangerous.

The definition of dangerous contraband is anything that could be used either to harm anyone inside the prison or to facilitate an escape.

In order to be convicted of promoting prison contraband in the first degree, it must be proven that the contraband involved was dangerous. In the case of items like knives and guns, it is clear that the items are dangerous.

However, other items can be less black and white in terms of their potential danger. However, all the prosecution needs to prove is that an item could be dangerous in order to declare it “dangerous contraband.”

• Example: Chris was caught with a straight razor in prison. He claimed that he was only using the razor to get a better shave. However, it was clear that the razor could be used to harm others, and it was therefore considered dangerous contraband.

Who is affected by these statutes?

These statutes affect any person who interacts with prisons. This includes prisoners, prison employees (such as corrections officers, custodians, contractors, and administrators), prison volunteers (such as teachers/counselors, clergy, tutors, and program leaders), delivery people and postal service/carrier workers, and any other person who visits a prison or has correspondence with prisoners.

What are some related crimes? 

Charges of promoting prison contraband may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Conspiracy to Promote Prison Contraband

The definition of conspiracy to promote prison contraband is actively planning on promoting prison contraband.

This charge applies if you actively intended and planned to introduce contraband into a prison, even if you did not manage to do so. Conspiracy charges come in six different degrees. When it comes to conspiracy to promote prison contraband, conspiracy in the sixth degree means agreeing with at least one other person to engage in the promotion of contraband.

1. Conspiracy in the fifth degree means agreeing with at least one other person to promote contraband if the contraband is dangerous, and/or if you are over 18 years old and your co-conspirator is under 16 years old.
2. Conspiracy in the fourth degree has the same description as a conspiracy in the fifth degree, with the addition of money laundering being involved.
3. Conspiracy in the third degree means a class B or C felony was performed, and you were over the age of 18 with an accomplice under the age of 16.
4. Conspiracy in the second degree means a class A felony was involved.
5. Conspiracy in the first degree means that a class A felony was involved, and you were over the age of 18 with an accomplice under the age of 16.

• Example: Lauren wanted to smuggle a pack of cigarettes into the prison where she was incarcerated. She was recorded asking her fifteen-year-old niece to bring the cigarettes to her and sending her niece money in a letter to pay for the pack. Though her niece never actually brought the cigarettes into the prison, this constituted a conspiracy. Because her niece was under 16, Lauren was charged with conspiracy in the fifth degree.

In order to be convicted of conspiracy, it must be proven that there was an “overt act” committed by at least one of the conspirators to further the conspiracy. This means that it must be proven that at least one participant did something concrete and provable with the intention to facilitate or plan the crime.

Related Offense #2: Bribery/Bribe Receiving

The definition of bribery/bribe receiving is the giving or taking of any benefit in exchange for unlawful action.

It is illegal to take or give any benefit (monetary or otherwise) in exchange for an illegal action. In this context, charges of bribery and bribe-taking may occur if a non-incarcerated person (such as a corrections officer) takes money or any other benefit in order to smuggle contraband–or allow contraband to be smuggled–into a prison.

• Example: Susan was incarcerated, and wanted to smuggle drugs into the prison. She offered the visiting room guard $1,000.00 to look the other way so her friend could pass her the drugs under the table. The guard agreed. Susan was caught with the drugs, and both she and the guard were charged with bribery and bribe-receiving, respectively.

Related Offense #3: Criminal Possession of a Controlled Substance

The definition of criminal possession of a controlled substance in possession of any illegal drug or any controlled prescription drug without the proper authorization/prescription.

If the contraband in your possession is a drug, you may be subject to this charge in addition to contraband charges. The possession of the drug in of itself is a separate crime.

• Example: Kate, a prisoner, was caught with Vicodin, for which she did not have a prescription. In addition to the Vicodin being contraband, it was also a controlled substance. Kate said she was merely holding on to the pills and did not intend to take or sell them, but the possession in of itself made Kate liable for an additional charge.

Additional charges may apply if your contraband is drug-related. They include the criminal sale of a controlled substance, criminally possessing a hypodermic instrument, criminal injection of a narcotic drug, criminal use of drug paraphernalia, and possessing the precursors to drugs (in other words, the elements, materials, substances, or tools necessary to create a drug).

What are some of the essential and impactful cases? 

There have been many important, precedent-establishing cases regarding the promotion of prison contraband. Three cases, in particular, have shaped the understanding of the law in the State of New York.

• The first case is People v. Finley. In this case, the standard for what constitutes “dangerous” contraband was clarified.

Namely, the Court established that small amounts of marijuana (in this case, three rolled joints worth) does not inherently qualify as dangerous contraband and that therefore, someone in possession of a small amount of marijuana would not necessarily be liable for the first-degree promotion of prison contraband charge.

• A later case (People vs. Ariosa]) further clarified that if an inmate has enough marijuana to prove an intent to sell, that will qualify as dangerous contraband since it would potentially cause security threats to the prison in the form of potential inter-inmate fighting.
• Another important case is People v. Greene.This case established that cell phones are considered dangerous contraband by the State of New York because they pose an inherent security risk by barring the prison staff from monitoring prisoner phone calls. This means that being caught with a cell phone in prison can open you up to the first-degree promotion of prison contraband charges.

What agencies detect, investigate, and prosecute this crime?  

There are several agencies involved with the investigation and prosecution of promoting prison contraband. Primarily, the detection and investigatory process are conducted by individual prison staff members and processed by the prison administration, the Department of Corrections, and New York State and local police.

Generally, they are tried by New York District Attorneys, though at times, cases go to Appellate and Supreme Courts. In the case of major drug trafficking, the D.E.A. may become involved.  

Statutory Penalties:

Promoting prison contraband in the second degree is a Class A misdemeanor. The potential penalties include:

• A fine of up to $1,000.00; and/or
• Imprisonment for up to one year.

Promoting prison contraband in the first degree is a Class felony. The potential penalties include:

• a fine of up to $5,000.00; and/or
• Imprisonment for 1 to 7 years.

Sentencing Enhancements

The penalties for promoting prison contraband may be steeper if:

Specifically, you face heightened penalties if you:

• Have been convicted of promoting prison contraband or similar crimes before;
• Have previously been convicted of a felony;
• Have a record of bad behavior and/or violence in prison;
• Are being simultaneously charged with additional crimes.

What are some of the additional consequences of being convicted?

Prison contraband is an issue that’s taken very seriously, and the penalties for being convicted of promoting it can be severe. If you are already incarcerated, you may face years of additional prison time, as well as a loss of privileges such as visitation.

Being convicted of this crime may also land you in administrative segregation (a.k.a. solitary confinement), and may harm your chances of parole

If you were not incarcerated before being convicted of promoting prison contraband, the consequences of a conviction could also be severe. In addition to potential fines and jail time, the conviction of promoting prison contraband in the first degree will make you a felon, which is a title that lasts a lifetime and can seriously impact your life and career.

Legal Defenses to Promoting Prison Contraband

There are several powerful legal defenses you can use to fight these charges.

They include:

Defense #1: The item was not contraband.

This defense relies on the definition of contraband. In some cases, an item can clearly be categorized as contraband (i.e., cell phones, illegal drugs, firearms, etc.).

In other cases, the lines are blurred, and the categorization as contraband was the result of a subjective opinion. The defense could challenge that opinion in the face of a contraband charge.

• Example: Tony was an inmate in prison. He had special vitamins with him in prison that was condoned by a previous warden. That warden left, and a new Corrections Officer found the vitamins and decided they were contraband. Tony was able to argue that they were not actually contraband, and fought the promotion of prison contraband charges on that basis.

Defense #2: You did not know the item was contraband.

This defense relies on an important element of the crime of promoting prison contraband, which must be proven if you are to be convicted: namely, that you were aware the item in question was contraband.

This mostly applies to things you could reasonably mistake as non-contraband (i.e., things that are not obvious weapons, drugs, or popular contraband items). If you were truly not aware that the item was contraband, you did not knowingly bring contraband into the building.

• Example: Peter was an inmate in prison. On a visit to the prison, his wife brought him an airplane modeling kit. Later on, Corrections Officers found the kit during a routine search of Peter’s cell. The Officers decided that one tool in the kit was contraband.

Peter did not know that the item was not allowed, as it had not been confiscated from his wife upon her entry to the prison, and he was clearly using the tool exclusively in the context of the kit. His attorney argued that this did not constitute the knowing promotion of prison contraband.

Defense #3: You did not knowingly introduce the contraband into the prison.

This defense is similar to the defense above, as it relies on the element of knowingly bringing contraband into a prison. This would apply in cases where you know something is contraband but were not knowingly responsible for bringing it into a prison.

• Example: Henrietta was an inmate in prison. She was in the visiting room seeing her family, with many other inmates doing the same. During her visit, another inmate she did not know brushed up against her, but Henrietta quickly forgot about it.

When Henrietta got back to her cell, she realized that the other inmate had slipped a baggie of drugs into her pocket without her knowing. The other inmate came to retrieve the baggy but was followed by a Corrections Officer and caught. Henrietta was charged along with the other inmate with promoting prison contraband.

However, her attorney argued that she did not know the other inmate, was not a party to the scheme to get the drugs into prison, and therefore was not liable.

 Defense #4: The contraband was not dangerous.

This defense applies to arguments in which the defense is attempting to lessen a contraband charge from the first degree to the second degree (and therefore from a felony to a misdemeanor).

In this case, the defendant admits that you knew the item was contraband and that you knowingly introduced it into a prison. However, it also argues that the item was not inherently dangerous to the other people inside the prison, nor was it a tool to facilitate an escape attempt.

• Example: Let’s site directly from case law. In the case of People v. Finley, Robert Finley was a prisoner. He was found to have three small joints of marijuana. Initially, he was convicted of promotion of prison contraband in the first degree, since it was argued that any drug in prison endangered the safety and security of the same.

However, upon appeal, his defense argued that, in fact, such a small of a quantity of marijuana was not a clear danger to anyone else in prison, and the appellate court agreed.

Why do you need a lawyer?

Prison contraband has been a hot button issue in recent years, and New York State takes it very seriously. Prisons, the Department of Corrections, and even the Governor’s Office have dedicated many resources to prosecuting contraband promotion.

An experienced attorney is essential to make the best case for yourself, and to obtain the best possible outcome. From investigation to negotiation to trial strategy, you need a well-versed advocate on your side. This is especially true if you are incarcerated, which makes you especially vulnerable to character attacks and prejudice.

 Call us for help.

For questions about the promotion of prison contraband, or to discuss your case confidentially with one of our very experienced criminal defense attorneys, do not hesitate to contact us.  We have local criminal law offices in your area. Let us fight for you.

2018

2. Woman Arrested for Bringing Contraband to Gouverneur Correctional Facility

NY State Police Press Release, June 18th, 2018

State Police responded to the Gouverneur Correctional Facility and arrested Rochelle M. Pagan, of Syracuse, for possessing synthetic marijuana in the facility. Pagan was charged with Promoting Prison Contraband in the 1st Degree, Reckless Endangerment in the 2nd Degree, and a Public Health Law violation for violating the sanitary code.

She was arraigned in the Town of Macomb Court and released on her own recognizance.

https://www.nyspnews.com/article_display.cfm?article_id=62999

2. Correctional Officer Arrested for Accepting A Bribe to Smuggle Cell Phones into the Metropolitan Correctional Center

U.S. Attorney’s Office for the Southern District of New York

August 23rd, 2018

Dario Quirumbay, a former correctional officer at the Metropolitan Correctional Center (MCC), was arrested and charged with accepting bribes in exchange for smuggling contraband into the facility. While he was a C.O., Quirumbay allegedly received approximately $1,000.00 to smuggle two cell phones and alcohol into MCC.

He met with a relative of an inmate to retrieve his cash and the two iPhones, which he then brought into the facility.

His charges include one count of conspiracy to commit bribery and to provide contraband in prison (which carries a maximum prison term of five years), one count of bribery (which carries a maximum prison term of 15 years), one count of providing contraband in a prison (which carries a maximum prison term of one year), and one count of conspiracy to commit honest services wire fraud (which carries a maximum prison term of 20 years.)

https://www.justice.gov/usao-sdny/pr/correctional-officer-arrested-accepting-bribe-smuggle-cellphones-metropolitan

4. Heroin, K2, Suboxone, and Marijuana Seized at the Nassau County Correctional Center

August 8th, 2018

Nassau County D.A. Press Release

Five people (Valerie Ritchwood, Christopher Wright, Dominique Horne, Julius Eastman, and Natasha Hyslop) were arrested and charged as part of a joint law enforcement operation to investigate and prosecute drug smuggling in the Nassau County Correctional Center.

The operation, called Operation United Front, included the D.A.’s Office, the Nassau County Police Department and Sheriff’s Department, and the U.S. Postal Inspection Service. According to the investigation’s findings, all of the defendants were part of a smuggling ring. Richwood was arrested for allegedly attempting to smuggle K2 synthetic marijuana and Suboxone into the prison.

Wright, who is a former inmate of NCCC, was arrested along with Horne (who was not incarcerated at the time) for attempting to smuggle Suboxone, marijuana, and matches into the jail. Eastman and Hyslop were arrested for attempting to smuggle heroin and Suboxone into the prison, where Eastman was an inmate.

http://nassauda.org/CivicAlerts.aspx?AID=1055&ARC=990

4. Brooklyn woman gets arrested for promoting prison contraband in Romulus.

NY State Police Press Release

17 December 2018

Cherita C. White of Brooklyn, NY was arrested and charged with promoting prison contraband in the 2nd degree and criminal possession of marijuana in the 5th degree. While visiting the Five Points Correctional Facility, she was found with three balloons containing marijuana. White was transported to Seneca County Jail.

https://www.nyspnews.com/article_display.cfm?article_id=65894

5. Correctional Officer Arrested for Taking Bribes to Smuggle Contraband Into the Metropolitan Correctional Center

April 5th, 2018

Victor Casado, a Federal correctional officer, was charged with taking bribes in exchange for smuggling contraband into the Metropolitan Correctional Center (MCC).

On multiple occasions between 2016 and 2017, Casado allegedly smuggled alcohol, cellphones, medications, and food into MCC in exchange for bribe payments, sometimes transferred by the relatives and even the attorneys of inmates.

He was charged with one count of conspiracy to commit bribery and to introduce contraband into prison, one count of bribery, one count of introducing contraband into prison, and one count of conspiracy to commit honest services wire fraud. The case was handled by the Department of Justice Office of the Inspector General, Public Corruption Unit.

https://www.justice.gov/usao-sdny/pr/correctional-officer-arrested-taking-bribes-smuggle-contraband-metropolitan

2019

2. New York City Prison Bribery and Narcotics Smuggling Prosecution Completed With Sentencing of the Last Defendant

April 15th, 2019

Eastern District of New York U.S. Attorney’s Office.

Carl Noel, a former corrections officer, employed by the NYC Department of Corrections, was sentenced as the final member of a bribery conspiracy to smuggle narcotics and other contraband into New York City prisons.

Noel and his co-defendants (Christian Mizell, Warren Green, Patrick Johnson, Robert Martino, Malik Holloway, and Asha Patterson) were charged for their participation in this conspiracy. Noel was sentenced to six months’ home confinement for accepting bribes in exchange for smuggling drugs into the Manhattan Detention Complex.

His co-defendants received sentences ranging from six months in a residential facility to 26 months’ imprisonment.

https://www.justice.gov/usao-edny/pr/new-york-city-prison-bribery-and-narcotics-smuggling-prosecution-completed-sentencing

2. Department of Corrections Officer, Inmate, and Three Civilians Indicted for Smuggling Contraband into Rikers Island

Bronx District Attorney Press Release

April 29^th, 2019

Torray Riles (a Department of Corrections Officer), as well as Joseph Swaby (a former inmate), and Vergillian Blount, Damont Brooks, and Aisha Tolbert, were all indicted for smuggling contraband into the Otis Bantum Correctional Center.

According to the investigation, Riles was caught trying to bring two Ziploc bags of marijuana, five DVDs, four packs of Newport Cigarettes, and loose rolling papers into the jail on January 21^s,t 2018. It was discovered that Riles had been part of an ongoing conspiracy with Joseph Swaby, who was incarcerated at the time, to smuggle drugs and other contraband items into the jail in exchange for money.

Swaby allegedly recruited his wife, Aisha Tolbert, and Damont Brooks and Vergillian Blount, her co-workers at a Brooklyn after-school program, to participate in the conspiracy. Swaby was recorded, calling them multiple times and ordering them to give the contraband and payment to Riles. Riles was charged with the following:

• four counts of third-degree Bribe Receiving,
• four counts of Official Misconduct,
• first and second degree Promoting Prison Contraband, Attempted Promoting Prison Contraband in the second degree,
• Attempted Criminal Sale of Marijuana in the third and fourth degree,
• fifth-degree Criminal Possession of Marijuana, and sixth-degree Conspiracy.

Swaby, Blount, Brooks, and Tolbert were charged with third-degree Bribery, third-degree Criminal Sale of Marijuana, fifth-degree criminal Possession of Marijuana, first and second-degree Promoting Prison Contraband, Attempted Promoting Prison Contraband in the second degree, and fifth and sixth-degree Conspiracy. If convicted of the top count of Bribery and Bribe Receiving, the defendants face a maximum of 2 1/3 to seven years in prison.

https://www1.nyc.gov/assets/doi/press-releases/2019/April/TorrayRiles_Indicted_RikersCO_42919.pdf

3. Two Jail Contraband Arrests in Tompkins County

Tomkins County Sheriff’s Department

March 27^th, 2019

Two jail contraband arrests were made by the Tomkins County Sheriff’s Office Corrections Staff. On March 11^th, 2019, during a routine cell search, corrections officers found cocaine on inmate Anthony J. Beeman, of Ithaca, New York.

Beeman was charged with Promoting Prison Contraband in the First Degree and Criminal Possession of a Controlled Substance in the Fifth Degree, both of which are Class D felonies.

On March 17^th, 2019, corrections officers conducted another routine cell search. During the search, they found drugs and drug paraphernalia in the bedding of inmate Allen L. Little, of Freeville, New York. Little was charged with Promoting Prison Contraband in the First Degree.

http://tompkinscountyny.gov/sheriff/media-releases/jail-contraband-arrests

4. Ellenville Man Arrested for Prison Contraband and Criminal Possession of a Controlled Substance

New York State Police Press Release

February 26^th, 2019

On February 25^th, 2019, Travon Webb, of Ellenville, New York, was allegedly discovered attempting to bring approximately 64 grams of Synthetic Marijuana (or K2) into the Wallkill Correctional Facility in Shawangunk, New York. Webb was a Correctional Officer, and the drugs were discovered on his person during a search of employees entering the facility.

An additional search of his vehicle found another 137 grams of Synthetic Marijuana. Webb was charged with Criminal Possession of a Controlled Substance in the Fifth and Seventh Degrees, Prison Contraband in the First Degree, and Official Misconduct of a Public Servant.

https://www.theharlemvalleynews.net/?p=48316

5. Prison Contraband Arrest at Clinton Correctional

New York State Police Press Release

January 14^th, 2019

On January 13^th, 2019, Kassie Reyes, of the Bronx, was discovered to have a quantity of marijuana on her person while visiting the Clinton Correctional Facility in Dannemora, NY.

The NY State Police were called and charged Reyes with Promoting Prison Contraband in the First Degree and Criminal Possession of Marijuana in the Fifth Degree. She was arraigned in the Town of Peru Court and was remained to the Clinton County Jail in lieu of $2,500.00 cash bail or $5,000.00 bond.

https://www.nyspnews.com/article_display.cfm?article_id=66198