| People v Castetter |
| 2009 NY Slip Op 05888 [64 AD3d 1007] |
| July 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TealCastetter, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Karin L. Intermill of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered August 19, 2008, convicting defendant upon her plea of guilty of the crime ofpromoting prison contraband in the first degree.
On March 7, 2008, while defendant was serving a weekend sentence in the Broome CountyJail for a prior criminal offense, jail officials searched her cell and discovered heroin anddalmane, a prescription drug. As a result, defendant was charged in a superior court informationwith two counts of promoting prison contraband in the first degree. She subsequently waivedindictment and pleaded guilty to one count in full satisfaction of both charges and was sentencedas a second felony offender to a prison term of 2 to 4 years. She now appeals.
Although defendant's challenge to the factual sufficiency of her plea allocution is precludedby her failure to make a motion to withdraw her plea or vacate the judgment of conviction (see People v Davis-Ivery, 59 AD3d853, 854 [2009]), the narrow exception to the preservation requirement is applicable asdefendant's factual recitation negated an essential element of the crime to which she pleadedguilty (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Ramirez, 42 AD3d 671,672 [2007]). Although a person confined to a detention facility is guilty of promoting prisoncontraband in the first degree merely by possessing dangerous contraband (see PenalLaw § 205.25 [2]), defendant was not charged with violating that specific subdivision ofthe applicable statute. Rather, defendant's crimes are alleged to have been [*2]committed in violation of Penal Law § 205.25 (1), whichstates that a person is guilty of promoting prison contraband in the first degree if the person"knowingly or unlawfully introduces dangerous contraband into a detention facility." Indeed,count one of the superior court information charges defendant with "bring[ing] heroin into theBroome County [Jail]" and count two charges her with "bring[ing dalmane] into the BroomeCounty [Jail]."
Before accepting defendant's plea to count one, County Court asked her if she brought heroininto the jail and defendant answered "yes." However, on further inquiry by the court, defendantstated that she found the heroin on the floor of a dressing room within the facility. Althoughdefendant added that "[she] was in possession of it so [she was] guilty," County Court informedher that "maybe not . . . [y]ou are charged with bringing it in." Notwithstandingsuch an implicit acknowledgment of defendant's possible confusion regarding the distinctionbetween subdivisions (1) and (2) of Penal Law § 205.25, County Court did not clarify todefendant that she had only been charged with the former. Rather, County Court's subsequentinquiries pertained strictly to whether defendant brought dalmane into the facility and where "inthe jail" she found the heroin. Inasmuch as defendant's responses offered no indication that shewas admitting to bringing the heroin into the jail, or that she was even aware of the exact natureof the charge to which she was pleading guilty, we conclude that County Court improperlyaccepted her guilty plea to count one of the superior court information (see People v Pagan, 36 AD3d1163, 1165 [2007]).
Defendant's remaining contention is rendered academic by our decision.
Cardona, P.J., Rose, Kane and Garry, JJ., concur. Ordered that the judgment is reversed, onthe law, plea vacated and matter remitted to the County Court of Broome County for furtherproceedings not inconsistent with this Court's decision.