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People v. Simmons

County Court, Livingston County

January 25, 2017

The People of the State of New York,
v.
Chastity A. Simmons, Defendant.

          For the People: GREGORY J. MCCAFFREY, Esq. Livingston County District Attorney ASHLEY WEISS, ESQ., of counsel

          For Defendants: WILLIAM T. EASTON, Esq. Attorney for Defendant

          DECISION AND ORDER

          Robert B. Wiggins, J.

         Defendant, Chastity A. Simmons, has been charged under Indictment No.2016-180 with 6 counts each of Promoting Prison Contraband in the First Degree (Penal Law § 205.25 [1]), Falsifying Business Records in the First Degree (§ 175.10) and Official Misconduct (§ 195.00). The charges stem from Defendant's alleged use of a personal cell phone while she was working as a Corrections Officer at Groveland Correctional Facility. Defendant moves, inter alia, for dismissal of the indictment for insufficient evidence at Grand Jury. For the reasons that follow, the motion is partially granted.

         I.

         The People's primary witness was Brian Austin, a senior investigator with the New York State Department of Corrections and Community Supervision ("DOCCS"). DOCCS had begun an investigation of Defendant's activities at work after receiving an anonymous tip that she had been engaging in an inappropriate relationship with an inmate. No admissible evidence was introduced to support that allegation. However, during the course of that investigation, Investigator Austin talked to an inmate who alleged that he had seen the glow of a cell phone from inside Defendant's shirt, and heard it ring, in June of 2015. Defendant's cell phone records were subpoenaed, and the call and text information was compared against Defendant's work time cards and log books. Investigator Austin testified that corrections officers are required to sign their time cards and verify "the validity of the document." If an officer was to leave her unit with an authorized release, they would have to log that information. Investigator Austin said he would "expect that if [Defendant] was to be gone more than 15 minutes from the facility where she... left the secure fence area, then maybe I would find a time-off slip, maybe I would find her punched out in the time card." He further testified that he "would also maybe expect to find in the facility staffing, as I mentioned earlier, where a sergeant had to make a notation as to what officer he had to take out of other coverage to put into her job during the time that she was gone."

         Investigator Austin testified that comparison of the cell phone records and time sheets showed that "there were on-duty usages of both texts and calls, phone calls, voice calls, during the time that [Defendant] was scheduled to work." Such off-duty cell phone use is "something [Defendant] could do if she had the appropriate authorization and used her telephone outside the confines of the facility." Corrections Officers may have cell phones on facility grounds - such as in their vehicles - but are not allowed to bring their personal cell phones into Groveland - i.e. "inside the fence" while they are working "without the express written permission of the Commissioner of the Department of Corrections, " which Defendant did not have. Investigator Austin testified that "there has never been an instance I'm aware of that the Commissioner has authorized, in writing, an employee to have a cell phone in the confines of the facility." He further testified that cell phones are "absolutely" considered contraband in the facility. When asked to define contraband, Investigator Austin testified that it "is any item that is not specifically authorized by the Department for an inmate or employee to possess inside the confines of the facility" (emphasis supplied). Investigator Austin also "absolutely" affirmed that cell phones are considered dangerous contraband, because they detract from a Corrections Officer's vigilance, and because they could be confiscated by inmates and used to contravene prison monitoring of communications. All of Defendant's shifts were worked within the confines of the facility.

         The first instance where Defendant's phone records indicated usage during work hours was on October 23, 2014, when there was an 18 ½ minute voice call at 4:17 p.m. Defendant's logbook indicated that she had been relieved by another officer from 4:10 to 4:20 on that date, which left "fifteen minutes where her time was unexcused, so to speak. Knowing where she worked in the facility, where her car would be, I find it very unlikely that she would have had sufficient time to make an eighteen-minute phone call, leave the confines of the facility to a location where her phone was allowed and then return within the ten-minute time indicated in her logbook." Records showed another on-duty call at 4:30 on November 6, 2014, and text massages were "either sent, read [or] received" on four additional occasions between March and June of 2015. On none of those occasions, other than the October 23, 2014 call, did records show "time-off slips, " or any indication that Defendant had been relieved in order to use her phone outside the facility. Investigator Austin acknowledged that the phone records did not indicate location information as to exactly where the phone was used. Another Investigator testified that records indicated that the calls were made "in that area" around the facility, but there was no evidence presented that Defendant was seen with a cell phone, or any calls or texts were made, within the confines of the facility on any of the dates at issue.

         II.

         In deciding whether the evidence introduced before the Grand Jury is sufficient to support the charges, the Court must determine whether the People have made out a prima facie case that Defendant committed the crimes charged (see People v Jennings, 69 N.Y.2d 103, 114-115 [1986]; see also People v Jensen, 86 N.Y.2d 248');">86 N.Y.2d 248 [1995]). "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt" (People v Mayo, 36 N.Y.2d 1002, 1004 [1975]; see Jensen, 86 N.Y.2d at 252; People v Gasen, 283 A.D.2d 227, 228 [1st Dept 2001], lv denied 96 N.Y.2d 918). In assessing whether the People have presented a prima facie cast, the Court "inquir[es] whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury" (Jennings, 69 N.Y.2d at 114; see People v Woodruff, 4 A.D.3d 770, 772 [4th Dept 2004]; see also People v Smaragdas, 27 A.D.3d 769');">27 A.D.3d 769 [2d Dept 2006], lv denied 7 N.Y.3d 763). "[T]his standard limits the reviewing court's inquiry to determining whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes. That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference" (People v Deegan, 69 N.Y.2d 976, 979; see Jensen, 86 N.Y.2d at 252; Woodruff, 4 A.D.3d at 772; Smaragdas, 27 A.D.3d at 769). The Court reviewing the Grand Jury presentation must limit its inquiry to the legal sufficiency of the evidence and may not weigh the proof or examine its quality or adequacy (see People v Galatro, 84 N.Y.2d 160, 164 [1994]). "The People have broad discretion in presenting a case to the Grand Jury and need not 'present all of their evidence tending to exculpate the accused'" (People v Radesi, 11 A.D.3d 1007');">11 A.D.3d 1007 [4th Dept 2004], lv denied 3 N.Y.3d 760, quoting People v Mitchell, 82 N.Y.2d 509');">82 N.Y.2d 509 [1993]; People v Edwards, 32 A.D.3d 281, 282 [1st Dept 2006], lv denied 7 N.Y.3d 901).

         III.

         The first six counts of the indictment charge Defendant with Promoting Prison Contraband based on her allegedly having used her cell phone within the confines of Groveland prison on six separate occasions. Penal Law § 205.25 provides that "A person is guilty of promoting prison contraband in the first degree when:

1. He knowingly and unlawfully introduces any dangerous contraband into a detention facility; or
2. Being a person confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any ...

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