PEOPLE v. McCRAE (2009)

Appeal, by permission, from an order of the County Court of Clinton County (Ryan, J.), entered January 5, 2008, which denied defendant's motion pursuant to CPL 440.10 to vacate that part of the judgment convicting him upon his plea of guilty of the crime of promoting prison contraband in the first degree, without a hearing.

In 2000, while an inmate at Clinton Correctional Facility in Clinton County, defendant was charged with promoting prison contraband in the first degree and unlawful possession of marihuana after he was found to be in possession of 10.94 grams of marihuana. Defendant pleaded guilty to both charges and his judgment of conviction was affirmed by this Court (297 A.D.2d 878 [2002], lv denied 1 N.Y.3d 576 [2003] ). Thereafter, the Court of Appeals decided People v. Finley (10 N.Y.3d 647 [2008] ), in which it held that a small amount of marihuana-specifically, less than 25 grams-does not constitute dangerous contraband within the meaning of Penal Law § 205.00(4) and § 205.25(2). Defendant then moved, pursuant to CPL 440.10, to vacate that part of the judgment convicting him of promoting prison contraband in the first degree, arguing that he was entitled to the “retroactive” application of People v. Finley (supra ). County Court denied the motion, without a hearing, and defendant appeals, by permission of this Court.

In deciding Finley, the Court of Appeals did not announce a substantive change in the controlling law but, rather, clarified the meaning of existing law (see People v. Hurell-Harring, 66 A.D.3d 1126, 1127 [2009] ). As Finley reflects the law as it existed at the time of defendant's plea, “this case presents no issue of retroactivity” (Fiore v. White, 531 U.S. 225, 228 [2001] ). Here, the indictment specifically alleged that defendant “knowingly and unlawfully possessed 10.94 grams of crushed vegetation containing marihuana.” However, as clarified by Finley, the possession of 10.94 grams of marihuana, in the absence of aggravating circumstances, did not constitute the possession of dangerous contraband within the meaning of Penal Law § 205.25 at the time of defendant's conviction (see People v. Finley, 10 N.Y.3d at 657-658, 862 N.Y.S.2d 1, 891 N.E.2d 1165). Accordingly, defendant's motion should have been granted and that part of the judgment convicting him of promoting prison contraband in the first degree should be vacated (see Fiore v. White, 531 U.S. at 228-229; People v. Hurell-Harring, 66 A.D.3d at 1128, 887 N.Y.S.2d 317; compare People v. Trank, 58 A.D.3d 1076, 1077 [2009], lv denied 12 N.Y.3d 860 [2009] [indictment did not specify the amount of marihuana the defendant allegedly possessed] ).

ORDERED that the order is reversed, on the law, motion granted, and that part of the judgment convicting defendant of promoting prison contraband in the first degree vacated.

MALONE JR., J.

SPAIN, J.P., ROSE, LAHTINEN and KAVANAGH, JJ., concur.