| People v Hines |
| 2011 NY Slip Op 04121 [84 AD3d 1591] |
| May 19, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rory D.Hines, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchely of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered May 2, 2008, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.
In satisfaction of a two-count indictment alleging that he possessed 10 grams of marihuanawhile incarcerated, defendant entered an Alford plea of guilty to attempted promotingprison contraband in the first degree and waived his right to appeal. County Court thereafterimposed the agreed-upon prison sentence of 1½ to 3 years, to run consecutively to theprison term defendant was already serving. Defendant now appeals and we reverse.
As the People concede, the indictment is jurisdictionally defective insofar as it chargesdefendant with promoting prison contraband in the first degree, as the 10 grams of marihuana heallegedly possessed did not satisfy the "dangerous contraband" element of that offense (PenalLaw § 205.25 [2]; see People vFinley, 10 NY3d 647, 653-659 [2008]; People v Reeves, 78 AD3d 1332, 1333 [2010]; People v McCrae, 68 AD3d 1451,1452 [2009]). Should the People continue to seek the dismissal of the remainder of theindictment, they are free to move for that relief before County Court (see CPL 210.20 [1][i]; 470.55 [2]).
Spain, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment is reversed, onthe law, plea vacated, count one of the indictment dismissed, and matter remitted to the CountyCourt of Clinton County for further proceedings not inconsistent with this Court's decision.