Criminal Law: "I Didn't Know..." is different from "It wasn't"

The Third Department has, for the second time this year, visited the issue of classifying "dangerousness" with respect to contraband in the charge of promotion of prison contraband in the first degree (People v Sylvester, [slip op. May 17, 2007]). In Sylvester, the defendant was the wife of an inmate in a State correctional facility, who ingeniously secreted three cellular telephones in a typewritter she mailed to her husband. When her husband was later discovered in possession of one of the cell phones, the game was up. Subsequently, the defendant was charged with promoting prison contraband in the first degree, to which she pleaded guilty to attempted promoting prison contraband in the first degree. While the defendant's arguments were unpreserved for appellate review, the Court nevertheless discussed the issues raised, the most important of which dealt with the "dangerous" element of the crime.

To be convicted of promoting prison contraband in the first degree, it must be proven that the defendant, knowingly and unlawfully made, obtained or possessed any dangerous contraband. The question raised by the defendant was whether her acknowledgment during the allocution "I didn't know it was dangerous contraband" negated an element of the crime, in light of the Third Department's holding in People v Pagan. (36 AD3d 1163 [2007]). In Pagan, the defendant pleaded guilty to attempted promoting prison contraband in the first degree for possessing a cellular telephone. At his allocution, he admitted to possessing the cell phone, but refused to admit that a cell phone was dangerous. The Third Department held, that the defendant's plea had to be vacated because he negated an essential element of the crime, i.e. that the cell phone was dangerous. The Court further explained that, unlike a weapon, whose dangerousness can be inferred, other objects not so blatantly dangerous must be established as such. Thus, the defendant's refusal to acknowledge that the cell phone was dangerous, in the absence of any evidence giving rise to an inference of dangerousness, mandated that his plea be vacated.

Distinguishing Pagan from the case at bar, the Court held that lack of knowledge that an item is dangerous is not the equivalent of refusing to admit that the contraband possessed is, in fact, dangerous. One wonders when cell phones will be definitively categorized, one way or another, lest these strange cases continue to pile up.

This all overlooks one potentially interesting legal argument. There is a mens rea element to this crime, knowingly. Ostensibly, the defendant failed to raise this argument, as the Court did not discuss it. If it had, I submit that the mens rea element should be read to modify both the possession/making of the contraband, and that it is dangerous as proscribed by law. In fact, such a result would be of great necessity, since no one seems to know what contraband is dangerous and what is not. Since the defendant specifically stated during allocution that she did not know cellular telephones were dangerous -- a proposition that the Third Department agreed with in People v Pagan -- her plea should have been vacated.