Opinion
110835
02-24-2022
The PEOPLE of the State of New York, Respondent, v. Armster TURNER, Appellant.
Clea Weiss, Ithaca, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
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. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), 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 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 other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility's institutional safety or security" ( People v. Finley, 10 N.Y.3d 647, 657, 862 N.Y.S.2d 1, 891 N.E.2d 1165 [2008] ; accord People v. Flagg, 167 A.D.3d 165, 167, 87 N.Y.S.3d 781 [2018] ; People v. Green, 119 A.D.3d 23, 26, 984 N.Y.S.2d 680 [2014], lv denied 23 N.Y.3d 1062, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014] ). As relevant here, the Court of Appeals has held that possession of a non-criminal, small amount of marihuana by an incarcerated individual within a detention facility does not constitute possession of dangerous contraband (see People v. Finley, 10 N.Y.3d at 658, 862 N.Y.S.2d 1, 891 N.E.2d 1165 ; People v. Trank, 58 A.D.3d 1076, 1077, 872 N.Y.S.2d 595 [2009], lv denied 12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009] ).
Although the possession of synthetic marihuana is a violation (see Public Health Law § 229 ; 10 NYCRR 9–1.2 ; People v. Morehouse, 183 A.D.3d 1180, 1182, 124 N.Y.S.3d 741 [2020], lv denied 35 N.Y.3d 1068, 129 N.Y.S.3d 386, 152 N.E.3d 1187 [2020] ), the Court of Appeals has rejected the position "that the distinction between contraband and dangerous contraband turns on whether an item is legal or illegal outside of prison" (People v. Finley, 10 N.Y.3d at 658 n. 8, 862 N.Y.S.2d 1, 891 N.E.2d 1165 ). The Court has also expressly left open the question of whether illegal quantities of marihuana could be deemed dangerous contraband (see People v. Finley, 10 N.Y.3d at 658 & n. 8, 862 N.Y.S.2d 1, 891 N.E.2d 1165 ; People v. Cooper, 67 A.D.3d 1254, 1256, 889 N.Y.S.2d 714 [2009], lv denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ).
Analogizing synthetic marihuana with marihuana, defendant avers that possession of a small amount of synthetic marihuana does not constitute possession of dangerous contraband and that the indictment therefore did not allege every element of the charged crime. Even if we were to agree with defendant that synthetic marihuana should be deemed the equivalent of marihuana (see People v. McLamore, 191 A.D.3d 1413, 1414–1415, 141 N.Y.S.3d 813 [4th Dept. 2021] [conjecturing that synthetic marihuana should be viewed in the same manner as marihuana, given that the former "is a synthetic drug that mimics the effects of THC, the active ingredient in marihuana"], lv denied 37 N.Y.3d 958, 147 N.Y.S.3d 508, 170 N.E.3d 382 [2021] ), the indictment made no mention of the quantity of synthetic marihuana that defendant possessed, and, as defendant recognizes, the presence of aggravating circumstances and/or possession of "larger amounts of [synthetic] marihuana could constitute dangerous contraband" ( People v. Trank, 58 A.D.3d at 1077, 872 N.Y.S.2d 595 ; see People v. Finley, 10 N.Y.3d at 658, 862 N.Y.S.2d 1, 891 N.E.2d 1165 ). Thus, "[t]he failure of the indictment to allege the quantity of [synthetic] marihuana did not constitute a jurisdictional defect. Because the supposed defect in the indictment was not jurisdictional, it was waived by defendant's knowing and voluntary guilty plea" ( People v. Trank, 58 A.D.3d at 1077, 872 N.Y.S.2d 595 [citation omitted]; see People v. Iannone, 45 N.Y.2d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 ).
To the extent that defendant argues that synthetic marihuana is not dangerous contraband per se because it is inherently not dangerous in any amount, we decline to so hold, as "the determination of what types and quantities of drugs [that] are ‘dangerous contraband’ per se is one that should be left to the [L]egislature" ( People v. McLamar, 191 A.D.3d at 1415, 141 N.Y.S.3d 813 [internal quotation marks and citation omitted]). Moreover, the record evidence before us indicates that the use of synthetic marihuana can cause aggressiveness, unpredictable behavior, paranoia and temporary psychosis – all of which "may endanger the safety or security of a detention facility or any person therein" ( Penal Law § 205.00[4] ; see 21 CFR 1308.11 [d][31]; [g], [h] [scheduling synthetic cannabinoids into schedule I of the federal Controlled Substances Act]; New York State Department of Health, Synthetic Marijuana, https://www.health.ny.gov/professionals/narcotic/synthetic_cannabinoids/ [Sept.2015]; New York City, Health, K2 – Synthetic Cannabinoids, https://www1.nyc.gov/site/doh/health/health-topics/k2 [last accessed Jan. 31, 2022]).
Garry, P.J., Lynch and Pritzker, JJ., concur. ORDERED that the judgment is affirmed.