| People v McCrae |
| 2009 NY Slip Op 09557 [68 AD3d 1451] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Lamale McCrae, Appellant. |
—[*1] Derek P. Champagne, Franklin County District Attorney, Special Prosecutor, Malone, forrespondent.
Malone Jr., J. Appeal, by permission, from an order of the County Court of Clinton County(Ryan, J.), entered January 5, 2008, which denied defendant's motion pursuant to CPL 440.10 tovacate that part of the judgment convicting him upon his plea of guilty of the crime of promotingprison contraband in the first degree, without a hearing.
In 2000, while an inmate at Clinton Correctional Facility in Clinton County, defendant wascharged with promoting prison contraband in the first degree and unlawful possession ofmarihuana after he was found to be in possession of 10.94 grams of marihuana. Defendantpleaded guilty to both charges and his judgment of conviction was affirmed by this Court(People v McCrae, 297 AD2d 878 [2002], lv denied 1 NY3d 576 [2003]).Thereafter, the Court of Appeals decided People v Finley (10 NY3d 647 [2008]), inwhich it held that a small amount of marihuana—specifically, less than 25grams—does not constitute dangerous contraband within the meaning of Penal Law§ 205.00 (4) and § 205.25 (2). Defendant then moved, pursuant to CPL 440.10, tovacate that part of the judgment convicting him of promoting prison contraband in the firstdegree, arguing that he was entitled to the "retroactive" application of People v Finley(supra). County Court denied the motion, without a hearing, and defendant appeals, bypermission of this Court.[*2]
In deciding Finley, the Court of Appeals did notannounce a substantive change in the controlling law but, rather, clarified the meaning ofexisting law (see People v Hurell-Harring, 66 AD3d 1126, 1127 [2009]). AsFinley reflects the law as it existed at the time of defendant's plea, "this case presents noissue of retroactivity" (Fiore v White, 531 US 225, 228 [2001]). Here, the indictmentspecifically alleged that defendant "knowingly and unlawfully possessed 10.94 grams of crushedvegetation containing marihuana." However, as clarified by Finley, the possession of10.94 grams of marihuana, in the absence of aggravating circumstances, did not constitute thepossession of dangerous contraband within the meaning of Penal Law § 205.25 at the timeof defendant's conviction (see People v Finley, 10 NY3d at 657-658). Accordingly,defendant's motion should have been granted and that part of the judgment convicting him ofpromoting prison contraband in the first degree should be vacated (see Fiore v White,531 US at 228-229; People v Hurell-Harring, 66 AD3d at 1128; compare People vTrank, 58 AD3d 1076, 1077 [2009], lv denied 12 NY3d 860 [2009] [indictment didnot specify the amount of marihuana the defendant allegedly possessed]).
Spain, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is reversed, onthe law, motion granted, and that part of the judgment convicting defendant of promoting prisoncontraband in the first degree vacated.