People v. Diaz

• Decision Date: 27 November 1996
• Citation: 650 N.Y.S.2d 436,233 A.D.2d 777
• Parties: The PEOPLE of the State of New York, Respondent, v. Ramon DIAZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 436

650 N.Y.S.2d 436

233 A.D.2d 777

The PEOPLE of the State of New York, Respondent, v. Ramon DIAZ, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 27, 1996.

James P. Trainor, Clifton Park, for appellant.

James T. Hayden, District Attorney, Elmira, for respondent.

Before CARDONA, P.J., and MIKOLL, YESAWICH, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the County Court of Chemung County (Danaher Jr., J.), rendered April 24, 1995, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant was found in possession of a razor blade while incarcerated in a State correctional facility. He was subsequently indicted for the crime of promoting prison contraband in the first degree and pleaded guilty to the crime of attempted promoting prison contraband in the first degree. On appeal, defendant argues that the indictment should be dismissed because it is jurisdictionally defective insofar as it failed to specify that he was incarcerated in a correctional facility at the time he possessed the subject contraband.

Initially, we note that defendant's plea of guilty does not preclude his challenge to the indictment if the indictment is, in fact, jurisdictionally defective (see, People v. Quamina, 207 A.D.2d 1030, 617 N.Y.S.2d 95, lv. denied 84 N.Y.2d 1014, 622 N.Y.S.2d 926, 647 N.E.2d 132; People v. Roe, 191 A.D.2d 844, 845, 595 N.Y.S.2d 121). "[A]n indictment is jurisdictionally defective * * * if it does not effectively charge the defendant with the commission of a particular crime" (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656; see, People v. Quamina, supra, at 1030, 617 N.Y.S.2d 95). This is the case if the indictment "fails to allege that a defendant committed acts constituting every material element of the crime charged" (People v. Iannone, supra, at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656).

Defendant was charged with violating Penal Law § 205.25(2), which states that "[a] person is guilty of promoting prison contraband in the first degree when * * * [b]eing a person confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any dangerous contraband". The indictment in this case alleged that "[t]he defendant, in the County of Chemung and State of New York, on or about the 11th day of July 1994, knowingly and unlawfully possessed dangerous contraband, to wit: a razor blade". Despite the fact that the indictment did not indicate that defendant was detained in a correctional facility, the indictment did make reference to the specific statutory section allegedly violated. "The incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself * * * for conviction under that statute" (People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813; see, People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037).

Further, the term "contraband" as expressly contained in the indictment is defined at Penal Law § 205.00(3) as "any article or thing which a person confined in a detention facility is prohibited from...