| People v Brown |
| 2010 NY Slip Op 05806 [75 AD3d 655] |
| July 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Harold C.Brown, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered November 21, 2008, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.
Defendant, a prison inmate, was indicted and charged with promoting prison contraband inthe first degree after he admitted to the correction officer who was processing his personalproperty that he was missing a cellular phone and charger. He thereafter moved to dismiss theindictment contending, among other things, that the cellular phone did not constitute"[d]angerous contraband" within the meaning of Penal Law § 205.00 (4) and People v Finley (10 NY3d 647[2008]). Following County Court's denial of that motion, defendant pleaded guilty to attemptedpromoting prison contraband in the first degree and was sentenced as a second felony offender toa prison term of 1½ to 3 years. This appeal ensued.
We affirm. As a threshold matter, defendant's challenge to the factual sufficiency and/orvoluntariness of his plea is unpreserved for our review due to defendant's failure to move towithdraw his plea or vacate the judgment of conviction (see People v Bethel, 69 AD3d 1126, 1127 [2010]; People v Scitz, 67 AD3d 1251[2009]; People v Harris, 51 AD3d1335, 1336 [2008], lv denied 11 NY3d 789 [2008]). Contrary to defendant'sassertion, the narrow exception [*2]to the preservationrequirement was not triggered here, as defendant did not make any statements during the courseof the plea allocution that negated an essential element of the crime or otherwise cast doubt uponhis guilt (see People v Grant, 60AD3d 1202, 1202-1203 [2009]; People v Jeske, 55 AD3d 1057, 1058 [2008], lv denied 11NY3d 898 [2008]). Notably, when asked to describe the conduct underlying the plea, defendantstated, "I attempted to possess a [sic] dangerous contraband in prison, a cell phone."Defendant's characterization of the cellular phone as dangerous renders this matterdistinguishable from our prior decision in People v Pagan (36 AD3d 1163 [2007]).[FN*]
To the extent that defendant challenges the sufficiency of the indictment itself, we find thatdefendant forfeited this claim by pleading guilty. While a defendant's guilty plea does not waivejurisdictional defects in an indictment, an indictment is jurisdictionally defective only if the actsalleged to have been performed by the defendant do not constitute an actual crime (see People v Champion, 20 AD3d772, 773 [2005]; People vPolanco, 2 AD3d 1154 [2003]). "To that end, where an indictment count incorporatesby reference the statutory provision applicable to the crime intended to be charged, it has beenrepeatedly held that this is sufficient to apprise the defendant of the charge and, therefore,renders the count jurisdictionally valid" (People v Champion, 20 AD3d at 774 [citationsomitted]). As the indictment here specified the provision of the Penal Law under whichdefendant was charged, we cannot say that the indictment was jurisdictionally defective.
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: In Pagan, the defendantadmitted to possessing a cellular phone in prison but refused to admit that he possessed adangerous instrument (People v Pagan, 36 AD3d at 1164-1165). This Court concludedthat the defendant's refusal to acknowledge that the phone was dangerous negated an essentialelement of the crime, thereby making it incumbent upon the trial court to inquire further beforeaccepting the defendant's plea. As the trial court failed to do so, this Court vacated thedefendant's plea (id. at 1165).