People v. Brown
| Decision Date | 18 September 1986 |
| Citation | 506 N.Y.S.2d 483,123 A.D.2d 473 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Harold BROWN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mark P. Hutchison, Elmira, for appellant.
James T. Hayden, Dist. Atty., Elmira, for respondent.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the County Court of Chemung County (Monroe, J.), rendered December 7, 1984, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant, an inmate at Elmira Correctional Facility, was indicted by a Chemung County Grand Jury and charged with the crime of promoting prison contraband in the first degree based upon his alleged possession of a 12-inch sharpened piece of metal with a cloth handle. Defendant subsequently pleaded guilty to attempted promoting prison contraband in the first degree in full satisfaction of the indictment and was sentenced to an indeterminate term of 1 1/2 to 3 years in prison.
Defendant's main argument for reversal, advanced for the first time on appeal, is that the statute under which he was convicted, making a prison inmate's possession of dangerous contraband a criminal offense (Penal Law § 205.25), is unconstitutionally vague. This argument was rejected by this court in People v. Miller, 106 A.D.2d 787, 789, 484 N.Y.S.2d 183, where it was held, on a virtually identical application of the statute to an inmate's possession of a similar object, that the statutory definition of contraband as any item an inmate is "prohibited from * * * possessing by statute, rule, regulation or order" (Penal Law § 205.00 [3] ), taken with the State inmate rule book's prohibition against possessing any article that could be used as a weapon, was sufficiently explicit to put an inmate on notice that possession of a sharpened metal rod was a criminal offense. Defendant further argues on the vagueness issue, however, that, at the time of his alleged offense, the inmate rule book had not yet been filed with the Secretary of State and hence was not legally effective under N.Y. Constitution, article IV, § 8. Therefore, defendant claims, vagueness existed because the statute failed to include a legally effective definition of contraband.
As we noted in Miller, the rule book is issued to every prisoner upon incarceration, and defendant does not contend that he did not have actual notice of the prohibited conduct. Moreover, at the time of defendant's offense, statutory and duly filed regulatory provisions in effect prohibited inmate possession of various articles (see, e.g., Correction Law § 502; 7 NYCRR 54.1; Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 205.00, pp 434-435), and thus validly made possession thereof a criminal offense under the Penal Law definition of contraband (Penal Law § 205.00[3] ). It follows that the definition of the crime of promoting...
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