Opinion
No. 103294.
May 19, 2011.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered May 2, 2008, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Barry J. Jones, Hudson Falls, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh, (Timothy G. Blatchely of counsel), for respondent.
Before: Spain, McCarthy, Garry and Egan Jr., JJ.
In satisfaction of a two-count indictment alleging that he possessed 10 grams of marihuana while incarcerated, defendant entered an Alford plea of guilty to attempted promoting prison contraband in the first degree and waived his right to appeal. County Court thereafter imposed the agreed-upon prison sentence of 1½ to 3 years, to run consecutively to the prison term defendant was already serving. Defendant now appeals and we reverse.
As the People concede, the indictment is jurisdictionally defective insofar as it charges defendant with promoting prison contraband in the first degree, as the 10 grams of marihuana he allegedly possessed did not satisfy the "dangerous contraband" element of that offense (Penal Law § 205.25; see People v Finley, 10 NY3d 647, 653-659; People v Reeves, 78 AD3d 1332, 1333; People v McCrae, 68 AD3d 1451, 1452). Should the People continue to seek the dismissal of the remainder of the indictment, they are free to move for that relief before County Court ( see CPL 210.20 [J] [i]; 470.55 [2]).
Ordered that the judgment is reversed, on the law, plea vacated, count one of the indictment dismissed, and matter remitted to the County Court of Clinton County for further proceedings not in-consistent with this Court's decision.