DECISION AND ORDER Pending before the Court is defendant’s Notice of Omnibus Motion seeking an order: I. Granting a hearing pursuant to People v. Sandoval;II. Dismissing the indictment as insufficient on its face;III. For a hearing pursuant People v. Ventimiglia;IV. Granting an inspection of the Grand Jury minutes and dismiss or reduce the indictment;V. Dismissing the indictment in furtherance of justice;VI. Suppressing the defendant’s statements; andVII. Reservation of Rights.I. SANDOVAL HEARINGIt is clear, upon review of defendant’s counsel’s affirmation in support of his motion for a hearing pursuant to People v. Sandoval and Criminal Procedure Law §240.43, that he is also seeking a hearing pursuant to the holding in People v. Molineaux, 168 NY 264 (1901). Ordinarily the Court would be inclined to deny the defendant’s request for a Molineaux hearing as it was not listed in the Notice of Motion in this matter. However, in responding to this branch of the Omnibus Motion, the People have consented to both a Sandoval and a Molineaux hearing, as well as to, just for good measure apparently, a hearing pursuant to People v. Ventimiglia, 52 NY2d 350 (1981), although such a hearing was not even requested in this branch of the motion. The defendant’s motion for both a Sandoval and Molineaux hearing is GRANTED. The Court will schedule a hearing at a date and time to be announced.II. DISMISSING COUNT ONE OF INDICTMENT AS INSUFFICIENT ON ITS FACEDefendant moves to dismiss Count One of the indictment pursuant Criminal Procedure Law §§210.20 (1) (b) and (c) and 210.30.Criminal Procedure Law §210.20 (1) (b) and (c) state:1. After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that:***(b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense, or(c) The grand jury proceeding was defective, within the meaning of section 210.35;The motion is GRANTED to the extent that the Court reduces Count One, Promoting Prison Contraband in the First Degree-Penal Law §205.25 (1), to the lesser included offense of Promoting Prison Contraband in the Second Degree-Penal Law §205.20 (1). “Contraband” is broadly defined in Penal Law §205.00 (3) as “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.” Inmates are clearly prohibited from obtaining or possessing money in the form of cash and the evidence presented to the grand jury was legally sufficient to establish that the defendant gave an inmate one hundred dollars in cash. Whether the same was “Dangerous Contraband” turns upon “whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s safety or security…” People v. Finley, 10 NY3d 647 at 657 (2008). While the People presented evidence that cash could, under certain circumstances, undermine the safety or security of Clinton Correctional (the detention facility at issue in this matter) no evidence was presented that the amount of cash involved in this case, one hundred dollars, could have such an effect. By way of explanation, the Court would struggle to find that an exceedingly modest amount of cash, for example five dollars, could ever rise to the level of “dangerous contraband”. Likewise, the Court would probably not need much persuading to determine that a large amount of cash, perhaps five thousand dollars, could readily “bring about…major threats to a detention facility’s safety or security…”. But the amount at issue in this case, one hundred dollars, appears to lie in that opaque zone between these two outliers and the grand jury was presented with no evidence that such an amount could have the effect envisioned by the legislature when it created a separate and distinct offense for the introduction of “dangerous contraband” into the state’s correctional facilities. It bears noting that ample and sufficient evidence was presented to the grand jury that the introduction of cash into the underground economy of a maximum security prison, such as Clinton Correctional Facility, could readily be used in such a manner as to pose a threat to the facility’s safety or security in some instances. However, the Court is convinced that, just as in People v. Finley, supra, the amount of the contraband involved is directly proportional to the probability that it would be so used. Without some evidence before it that the amount of cash involved in this case had crossed the threshold between the two levels of contraband the Legislature has so deliberately delineated the grand jury lacked a legally sufficient basis to indict the defendant for the more serious crime. Accordingly the Court, pursuant to the authority granted it by Criminal Procedure Law §210.20 (1-a), directs that the first count of the indictment be reduced to “the most serious lesser included offense”, or in this case, Promoting Prison Contraband in the Second Degree-Penal Law §205.20 (1). The Court notes that, pursuant to Criminal Procedure Law §210.20 (6), the effectiveness of this order shall be stayed for thirty days to allow the People to exercise one of the three options available to it under that subdivision.Lastly, the grand jury proceeding was not “defective” pursuant to Criminal Procedure Law §210.35.III. VENTIMIGLIA HEARINGDefendant’s moves for a hearing pursuant to People v. Ventimiglia, 52 NY2d 350 (1981). The People previously consented to this relief while responding to the defendant’s motion for a hearing pursuant People v. Sandoval, 34 NY2d 371 (1974). The motion is GRANTED. The Court will schedule a hearing at a date and time to be announced.IV. TO INSPECT THE GRAND JURY MINUTES AND DISMISS OR REDUCE THE INDICTMENTThe defendant’s motion to inspect the Grand Jury minutes is DENIED. The defendant’s motion for the Court to conduct an in camera review of the Grand Jury minutes is GRANTED. Upon review of the same, the defendant’s motion to dismiss the indictment, or reduce the counts contained therein, is GRANTED to the extent previously discussed in part II of this Decision and Order above. The Grand Jury was properly constituted and the Grand Jury proceedings were properly conducted. The evidence submitted to the Grand Jury was sufficient to establish each and every element of the offenses charged, except as noted in part II of this Decision and Order above, and the Grand Jury was properly instructed.V. DISMISSING INDICTMENT IN THE FURTHERANCE OF JUSTICEThe Court has viewed the facts and circumstances of this matter through the prism of Criminal Procedure Law §210.40 and the factors laid out therein and finds virtually no applicability of that statute to the matter sub judice. The motion is DENIED.VI. TO SUPPRESS STATEMENTS OF DEFENDANTDefendant moves to suppress any statements she provided to the police during the investigation of this matter. She further moves to suppress any evidence obtained from the “exploitation of the unlawfully obtained statement.” She also seems to request suppression of any “identification evidence” although, as pointed out by the People, the defendant was not identified through the use of a line up or photo array so it is unclear exactly what she is seeking. She requests that the motion to suppress be granted summarily or, alternatively, after a hearing. The People oppose the motion. The defendant’s request that the motion be granted summarily is DENIED. The defendant’s request for a hearing as to whether her statements were voluntary is GRANTED. However, given that the defendant’s papers did not contain sworn allegations of fact supporting the grounds for suppression, the hearing shall be limited to the grounds specified in subdivisions three and six of Criminal Procedure Law §710.20 (See Criminal Procedure Law §710.60 [3] [b]).VII. RESERVATION OF RIGHTSThis branch of the defendant’s Omnibus Motion does not request any relief but simply “reserves” the defendant’s right to make further motions “on grounds that could not have been reasonably raised” in the instant motion. Defendant need not “reserve” a right specifically granted to him by Criminal Procedure Law 255.20 (3) and the Court is at a loss as to what purpose this branch of the Omnibus Motion may serve.In determining this motion the Court has considered a Notice of Omnibus Motion dated May 3, 2018, the Affirmation of Justin D. Herzog, Esq. dated May 3, 2018, in support thereof and the Affirmation of Assistant District Attorney, Timothy G. Blatchley, Esq., dated May 15, 2018, in opposition thereto.So Ordered.ENTER:Dated: July 24, 2018Plattsburgh, New York
