People v. Diaz

CourtNew York Supreme Court Appellate Division
Citation650 N.Y.S.2d 436,233 A.D.2d 777
PartiesThe PEOPLE of the State of New York, Respondent, v. Ramon DIAZ, Appellant.
Decision Date27 November 1996

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.

Page 437

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...

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5 cases
  • People v. George
    • United States
    • New York Supreme Court Appellate Division
    • May 13, 1999
    ...Iannone, supra, at 598, 412 N.Y.S.2d 110, 384 N.E.2d 656, quoting Pitler, N.Y. Crim. Practice Under the CPL, p 302; see, People v. Diaz, 233 A.D.2d 777, 778, 650 N.Y.S.2d 436; People v. Palmer, 108 A.D.2d 545, 546, 490 N.Y.S.2d 293; see also CPL 200.15, 200.50). Also, defendant has not demo......
  • People v. Edwards, 110842
    • United States
    • New York Supreme Court Appellate Division
    • February 6, 2020
    ...of the statutory definitions of those elements" in order to survive 180 A.D.3d 1112 a jurisdictional challenge ( People v. Diaz, 233 A.D.2d 777, 778, 650 N.Y.S.2d 436 [1996] ; see People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; People v. Wilder, 69 N.Y.2d 8......
  • People v. Chappelle
    • United States
    • New York Supreme Court Appellate Division
    • May 7, 1998
    ...by explicit provision of the statute itself" (People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813; see, People v. Diaz, 233 A.D.2d 777, 650 N.Y.S.2d 436). Concerning the sufficiency of the plea allocution, again we find the issue unpreserved for review due to a failure to ......
  • People v. Shaver, 13015
    • United States
    • New York Supreme Court Appellate Division
    • January 17, 2002
    ...right to appeal (see, e.g., People v Hogabone, 278 A.D.2d 525; People v George, 261 A.D.2d 711, lv denied 93 N.Y.2d 1018; People v Diaz, 233 A.D.2d 777; People v Roe, 191 A.D.2d 844). Inasmuch as the information fails to allege the labor dispute exception set forth in Penal Law § 215.50, we......
  • Request a trial to view additional results

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