People v. McDermott

• Decision Date: 02 April 1987
• Citation: 69 N.Y.2d 889,515 N.Y.S.2d 225,507 N.E.2d 1081
• Parties: , 507 N.E.2d 1081 The PEOPLE of the State of New York, Respondent, v. David E. McDERMOTT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 225

515 N.Y.S.2d 225

69 N.Y.2d 889, 507 N.E.2d 1081

The PEOPLE of the State of New York, Respondent, v. David E. McDERMOTT, Appellant.

Court of Appeals of New York.

April 2, 1987.

Joseph J. Balok, Jr., Public Defender (Kevin Moshier, Elmira, of counsel), for appellant.

James T. Hayden, Dist. Atty., for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of County Court should be affirmed.

Defendant, a correction officer at Elmira Correctional Facility, appeals from an order of County Court reinstating an information charging him with promoting prison contraband in the second degree by knowingly and intentionally selling whiskey to an inmate (see, Penal Law § 205.20[1] ). The Legislatu has specified that contraband is "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order" (Penal Law § 205.00[3] ). Thus, to establish that the article "promoted" is "contraband", other statutes and rules must be examined. This information did not identify the particular regulation the prosecution relied upon and defendant, assuming that the regulation involved must be that found in the "Standards for Inmate Behavior", moved to dismiss. He contended that the information was defective because section 8 of article IV of the State Constitution provides that departmental rules and regulations shall not be effective until filed in the office of the Secretary of State and that the "Standards for Inmate Behavior" had not been filed on the date of the offense as required (see, Matter of Jones v. Smith, 64 N.Y.2d 1003, 489 N.Y.S.2d 50, 478 N.E.2d 191). Recorder's Court agreed and granted defendant's motion. On appeal, County Court reinstated the information. It found the information sufficient based on the visitation regulations found in 7 NYCRR former § 200.5(d), which had been filed with the Secretary of State and which do identify alcohol as contraband and forbid visitors from making gifts of it to inmates.

On this appeal defendant contends that County Court erred because, as both courts below found, the "Standards for Inmate Behavior" had not been filed as required by the Constitution, because the rule regulating inmate visitation was not intended to apply to correction officers and could not provide a basis for prosecuting them and because none of the several other regulations or statutes urged by the District Attorney is applicable for similar reasons.

It is fundamental that an information is jurisdictionally defective unless it states every element of the crime with which the defendant is charged and the particular facts establishing that defendant committed it (CPL 100.40[1][c]; 100.15[3]; People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179; People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872; People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336). The requireme serves two purposes: to provide notice enabling the defendant to prepare for trial and to...