People v. Polanco, 14170.
| Decision Date | 24 December 2003 |
| Docket Number | 14170. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILFREDO POLANCO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Washington County (Hemmett, Jr., J.), rendered May 29, 2002, convicting defendant upon his plea of guilty of the crime of aggravated harassment of an employee by an inmate.
The indictment charges that defendant expelled semen into an envelope, then sent that envelope to an employee of the correctional facility where defendant was incarcerated. Defendant moved to dismiss the indictment charging him with aggravated harassment of an employee by an inmate. After County Court denied his motion, defendant entered an Alford plea to the charged crime. County Court imposed the agreed-upon sentence of 1½ to 3 years' imprisonment, consecutive to his existing prison sentence.
Contrary to the People's assertion, defendant did not forfeit his challenge to the sufficiency of the indictment. A defendant's guilty plea does not waive jurisdictional defects in the indictment (see People v Iannone, 45 NY2d 589, 600 [1978]; People v George, 261 AD2d 711, 713 [1999], lv denied 93 NY2d 1018 [1999]). If the acts that defendant is accused of performing simply do not constitute a crime, the indictment is jurisdictionally defective (see People v Iannone, supra at 600; People v Case, 42 NY2d 98, 100 [1977]; People v Abrams, 177 AD2d 633 [1991]).
The present indictment is jurisdictionally defective, requiring its dismissal. The crime charged here requires that an inmate, "with intent to harass, annoy, threaten or alarm a person in a facility whom he knows or reasonably should know to be an employee of such facility ... [,] causes or attempts to cause such employee to come into contact with blood, seminal fluid, urine or feces, by throwing, tossing or expelling such fluid or material" (Penal Law § 240.32). The statutory language specifically requires that the contact or attempted contact with such bodily substance be facilitated "by throwing, tossing or expelling." If the Legislature intended to prevent inmates from exposing facility employees to bodily materials by any means an inmate could contrive, it could have placed a period after the word feces and omitted the remainder of that sentence. Instead, by including a specific list of methods of exposing employees to such...
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People v. Poulos
...so, "the Legislature limited criminalization to contact through those methods and excluded other methodologies" ( People v. Polanco, 2 A.D.3d 1154, 1155, 770 N.Y.S.2d 167 [2003] ).1 The dispute thus centers on whether the act of "kicking" falls within the scope of "expelling" as prohibited ......
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People v. Boula
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...the evidence was legally sufficient to support a conviction under that statute is nevertheless instructive. Cf. People v. Polanco, 2 A.D.3d 1154, 770 N.Y.S.2d 167, 168–69 (2003) (an indictment alleging that an inmate expelled bodily fluid into an envelope, then sent it to a corrections empl......
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