| People v Hurell-Harring |
| 2009 NY Slip Op 07523 [66 AD3d 1126] |
| October 22, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KimberlyHurell-Harring, Appellant. |
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Stein, J. Appeals (1) from a judgment of the County Court of Washington County(McKeighan, J.), rendered November 16, 2007, convicting defendant upon her plea of guilty ofthe crime of promoting prison contraband in the first degree, and (2) by permission, from anorder of said court, entered December 22, 2008, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant smuggled 21.1 grams of marihuana into Great Meadow Correctional Facility inWashington County in order to deliver it during a visit with her husband, an inmate. Afterwaiving indictment and agreeing to proceed by superior court information (hereinafter SCI)charging her with promoting prison contraband in the first degree, defendant pleaded guilty tothat charge and waived her right to appeal. She was sentenced to five years of probation, acondition of which was that she serve six months in jail. Defendant filed a notice of appeal fromthe judgment of conviction. She also later moved to vacate the judgment pursuant to CPL440.10. After County Court denied the motion, defendant obtained permission from this Court toappeal that decision. The two appeals were consolidated and are now before us.[*2]
We agree with defendant's contention that the SCI wasjurisdictionally defective.[FN1] "An [information] is jurisdictionally defective . . . if it fails to allege that thedefendant committed acts constituting every material element of the crime charged" (Peoplev D'Angelo, 98 NY2d 733, 734-735 [2002]; see People v Motley, 69 NY2d 870, 872[1987]). As relevant here, a person is guilty of the crime of promoting prison contraband in thefirst degree when he or she "knowingly and unlawfully introduces any dangerous contrabandinto a detention facility" (Penal Law § 205.25 [1]). In this case, the SCI referred to therelevant statute and alleged that defendant "did knowingly and unlawfully introduce dangerouscontraband, namely 21.1 grams of marihuana contained in a condom hidden in hervagina, into Great Meadow Correctional Facility for the purpose of giving same to. . . an inmate at said facility" (emphasis added).
After defendant pleaded guilty and during the pendency of this appeal, the Court of Appealsheld that small amounts of marihuana—specifically, amounts less than 25 grams, thepossession of which constitutes only a noncriminal violation outside of prison—are notdangerous contraband within the meaning of Penal Law § 205.00 (4) and § 205.25(see People v Finley, 10 NY3d647, 654 [2008]). Because the Court of Appeals was clarifying the meaning of existing law,retroactive application of that holding is proper on this direct appeal (see People v Jean-Baptiste, 11 NY3d539, 542 [2008]; People v Pepper, 53 NY2d 213, 214 [1981], cert denied454 US 967 [1981]). Thus, applying the law as articulated in People v Finley(supra), the SCI in this case is jurisdictionally defective because the amount ofmarihuana that defendant was alleged therein to have brought into the correctional facility wasinsufficient to constitute "dangerous contraband"—a material element of the crimecharged[FN2](see Penal Law § 205.00 [4]; § 205.25 [1]; People v Finley, 10NY3d at 654-658; People v D'Angelo, 98 NY2d at 734-735; compare People vTrank, 58 AD3d at 1076 [SCI did not set forth the quantity of marihuana defendantpossessed]).[FN3]Inasmuch as the act of which defendant is accused does not constitute a crime, the judgment ofconviction must be reversed (see Peoplev Polanco, 2 AD3d 1154, 1154-1155 [2003]).[*3]
In light of the foregoing, defendant's remainingcontentions are academic.
Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed, on thelaw, plea vacated, and superior court information dismissed. Ordered that the appeal from theorder is dismissed, as academic.
Footnote 1: We note that this argument isnot waived by defendant's guilty plea (see People v Iannone, 45 NY2d 589, 600 [1978];People v Trank, 58 AD3d 1076, 1077 [2009], lv denied 12 NY3d 860 [2009]) orprecluded by her waiver of appeal (see People v Hansen, 95 NY2d 227, 228-229 [2000];People v Simmons, 27 AD3d786, 786-787 [2006], lv denied 7 NY3d 763 [2006]).
Footnote 2: Although the Court of Appealshas articulated that 25 grams or less of marihuana could constitute dangerous contraband in thepresence of aggravating circumstances (People v Finley, 10 NY3d at 654), the recordbefore us is bereft of allegations that would indicate the existence of such circumstances.
Footnote 3: While "[t]he incorporation byspecific reference to the statute [defining the crime charged] operates without more to constituteallegations of all the elements of the crime" (People v D'Angelo, 98 NY2d at 735; seePeople v Cohen, 52 NY2d 584, 586 [1981]), here such incorporation was negated by thespecific allegation that the amount of marihuana in question was only 21.1 grams (comparePeople v Motley, 69 NY2d at 870).