| People v Reeves |
| 2010 NY Slip Op 08021 [78 AD3d 1332] |
| November 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bennett Reeves,Appellant. |
—[*1]
Egan Jr., J. Appeal, by permission, from an order of the County Court of Greene County (Lalor,J.), entered September 25, 2009, which denied defendant's motion pursuant to CPL 440.10 to vacatethe judgment convicting him of the crime of attempted promoting prison contraband in the first degree,without a hearing.
Defendant was charged in a 2007 indictment with promoting prison contraband in the first degreeand unlawful possession of marihuana, arising from his possession of 25 grams of marihuana whileincarcerated. Under the terms of a plea agreement, defendant waived his right to appeal and pleadedguilty to attempted promoting prison contraband in the first degree. The Court of Appeals subsequentlyheld that 25 grams or less of marihuana, in the absence of aggravating circumstances, does notconstitute dangerous contraband as required to support a conviction of promoting prison contraband inthe first degree (see Penal Law § 205.00 [4]; § 205.25 [2]; People v Finley, 10 NY3d 647,653-659 [2008]). Defendant accordingly moved to vacate the judgment of conviction and nowappeals, by permission, from County Court's denial thereof.
As the Court of Appeals in Finley was clarifying the meaning of existing law, the presentcase raises no issue of retroactivity (seePeople v McCrae, 68 AD3d 1451, 1452 [2009]; People v Hurell-Harring, 66 AD3d 1126, 1127 [2009]). Instead, thequestion is whether the [*2]indictment charging defendant wasjurisdictionally defective, in that it "fails to allege that . . . defendant committed actsconstituting every material element of the crime charged" (People v Iannone, 45 NY2d 589,600 [1978]; see CPL 440.10 [1] [a]; People v Hurell-Harring, 66 AD3d at 1127).While the indictment incorporates the statutory provision defining the crime by reference, itsidentification of the allegedly dangerous contraband as 25 grams of marihuana is controlling (seePeople v Randall, 9 NY2d 413, 422 [1961]; People v Hurell-Harring, 66 AD3d at 1128n 3; cf. People v Brown, 75 AD3d655, 656 [2010]; People v Trank, 58 AD3d 1076, 1077 [2009], lv denied 12NY3d 860 [2009]). Marihuana in that amount does not ordinarily constitute dangerous contraband,and imprecise grand jury testimony in this case regarding past problems caused by inmates' marihuanapossession, which is devoid of discussion as to the amounts of marihuana involved, did not establishaggravating circumstances that would render it otherwise (see e.g. People v Finley, 10 NY3dat 657 n 6). Accordingly, defendant's motion should have been granted and the judgment of convictionvacated (see People v McCrae, 68 AD3d at 1452).
Cardona, P.J., Peters, Spain and Kavanagh, JJ., concur. Ordered that the order is reversed, on thelaw, motion granted and judgment of conviction vacated.