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

The PEOPLE of the State of New York, Respondent, v. Jessica L. TRANK, Appellant.

Decided: January 29, 2009

Before:  PETERS, J.P., ROSE, KANE and KAVANAGH, JJ. David M. Kaplan, Penfield, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered January 4, 2008, convicting defendant upon her plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant was apprehended while attempting to smuggle more than 19 grams of marihuana into a correctional facility where her boyfriend was incarcerated.   A grand jury indicted her on charges of promoting prison contraband in the first degree and unlawful possession of marihuana.   Although defendant was aware that a case pending in the Court of Appeals could clarify the elements of promoting prison contraband in the first degree under Penal Law § 205.25, she pleaded guilty to attempted promoting prison contraband in the first degree in satisfaction of the indictment.   Approximately six months following defendant's sentencing, the Court of Appeals held that a small amount of marihuana, generally less than 25 grams, is not dangerous contraband (People v. Finley, 10 N.Y.3d 647, 657-658, 862 N.Y.S.2d 1, 891 N.E.2d 1165 [2008] ).   On appeal, defendant contends that the indictment was jurisdictionally defective or, in the alternative, that her conviction should be reduced to a misdemeanor based upon the law as enunciated in Finley.

 While 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. Polanco, 2 A.D.3d 1154, 1154, 770 N.Y.S.2d 167 [2003] ), the indictment here was not jurisdictionally defective.   Defendant contends that because, as elucidated in Finley, possession of a small amount of marihuana does not constitute possession of dangerous contraband, the indictment did not allege every element of the charged crime.   However, the indictment made no mention of the quantity of marihuana defendant possessed, and larger amounts of marihuana could constitute dangerous contraband (see People v. Finley, 10 N.Y.3d at 658, 862 N.Y.S.2d 1, 891 N.E.2d 1165).   The failure of the indictment to allege the quantity of 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 (see People v. Iannone, 45 N.Y.2d at 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;  People v. Williamson, 301 A.D.2d 860, 862, 755 N.Y.S.2d 443 [2003], lv. denied 100 N.Y.2d 567, 763 N.Y.S.2d 824, 795 N.E.2d 50 [2003] ).

 “[A]bsent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise” (Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 [1970] [internal citation omitted];  see People v. Edwards, 96 N.Y.2d 445, 452, 729 N.Y.S.2d 410, 754 N.E.2d 169 [2001] ).   Defense counsel was aware that appeals in Finley and a companion case were pending before the Court of Appeals while defendant was contemplating her options.   During her plea colloquy, defendant acknowledged that she had fully discussed her case with counsel.   By knowingly, voluntarily and intelligently pleading guilty, defendant accepted a plea to a reduced charge in light of the law at the time (see People v. Martinez, 34 A.D.3d 859, 823 N.Y.S.2d 574 [2006];  People v. Salters, 30 A.D.3d 903, 817 N.Y.S.2d 743 [2006], mod. sub nom. People v. Finley, 10 N.Y.3d 647, 862 N.Y.S.2d 1, 891 N.E.2d 1165 [2008];  People v. McCrae, 297 A.D.2d 878, 747 N.Y.S.2d 399 [2002], lv. denied 1 N.Y.3d 576, 775 N.Y.S.2d 792, 807 N.E.2d 905 [2003] ), rather than gamble on the possibility of a helpful decision from the state's high court in the future.   Hence, defendant is bound by her choice to plead guilty, even though the crime charged would necessarily have been reduced post-Finley.

We do not have jurisdiction to reduce the charge to a misdemeanor in the interest of justice, and we decline to exercise our interest of justice jurisdiction to reduce defendant's sentence.

ORDERED that the judgment is affirmed.


PETERS, J.P., ROSE and KAVANAGH, JJ., concur.

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