People v. Turner

• Decision Date: 24 February 2022
• Docket Number: 110835
• Parties: The PEOPLE of the State of New York, Respondent, v. Armster TURNER, Appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1375
163 N.Y.S.3d 696

The PEOPLE of the State of New York, Respondent,
v.
Armster TURNER, Appellant.

110835

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 11, 2022
Decided and Entered: February 24, 2022

Clea Weiss, Ithaca, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

202 A.D.3d 1375

Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),

163 N.Y.S.3d 697

rendered September 28, 2018, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

On July 29, 2017, a correction officer observed defendant, an incarcerated individual, and his visitor acting suspiciously, prompting the correction officer to inspect certain garbage that the visitor discarded after the visit. Upon doing so, the correction officer discovered five half-inch balls of synthetic marihuana in wrappers. As a result of the incident, defendant was charged in an indictment with promoting prison contraband in the first degree. Defendant subsequently filed an omnibus motion seeking to, among other things, dismiss the indictment pursuant to CPL 210.30 arguing that the evidence presented to the grand jury was legally insufficient to support the charge because synthetic marihuana does not constitute dangerous contraband. County Court denied the motion, finding that there was sufficient evidence presented to support a reasonable belief that synthetic marihuana constituted dangerous contraband. Thereafter, in full satisfaction of the indictment, defendant pleaded guilty to the reduced charge of attempted promoting prison contraband in the first degree. Defendant was sentenced, as a second felony offender, to the agreed-upon prison term of 1½ to 3 years. Defendant appeals, contending that the indictment was jurisdictionally defective because synthetic marihuana does not constitute dangerous contraband.

Although a guilty plea does not waive jurisdictional defects

202 A.D.3d 1376

in the indictment (see People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; People v. Cruz, 104 A.D.3d 1022, 1023, 960 N.Y.S.2d 741 [2013] ; People v. Hurell–Harring, 66 A.D.3d 1126, 1127 n. 1, 887 N.Y.S.2d 317 [2009] ), the indictment here was not jurisdictionally defective. "An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime – for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged" ( People v. D'Angelo, 98 N.Y.2d 733, 734–735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002] ; see People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988] ; People v. Iannone, 45 N.Y.2d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 ; People v. West, 189 A.D.3d 1981, 1983, 139 N.Y.S.3d 413 [2020], lv denied 37 N.Y.3d 975, 150 N.Y.S.3d 688, 172 N.E.3d 800 [2021] ). A person is guilty of the crime of promoting prison contraband in the first degree when, "[b]eing a person confined in a detention facility, he [or she] knowingly and unlawfully makes, obtains or possesses any dangerous contraband" ( Penal Law § 205.25[2] ). " ‘Dangerous contraband’ means contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein" ( Penal Law § 205.00[4] ).

The Court of Appeals has articulated that "the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or...