(dissenting). I respectfully dissent. Defendant principally maintains that the indictment was jurisdictionally defective since the pertinent regulations of the Commissioner of Correctional Services prohibiting the possession of contraband in a correctional facility were not filed with the Secretary of State as required by NY Constitution, article IV, § 8 and Executive Law § 102. In my view, defendant did not waive this objection upon entry of a guilty plea (see, People v Lee, 58 NY2d 491; People v lannone, 45 NY2d 589, 600-601; People v Thomas, 74 AD2d 317, affd 53 NY2d 338). Contrary to the majority’s position, defendant’s claim does not constitute a challenge to the "factual sufficiency of the allegations of the indictment”. Defendant in no way controverts the fact that he actually possessed the metal shank, and such a contention would concededly be foreclosed by the guilty plea (see, People v Lee, supra, p 494). The absence of properly filed rules and regulations may not, however, be characterized as an "extrinsic fact”, for the filing of these rules is part and parcel of the statutory proscription against contraband. The symmetry is clear: by statute, contraband is definable through the Commissioner’s regulations; absent a proper filing of these regulations, the indictment cannot "effectively charge the defendant
*60with the commission of a particular crime” (People v lannone, supra, p 600). In other words, one cannot allege as a material element of a crime something that has not been defined. Accordingly, since the challenge is to the very jurisdiction of the indictment, and not simply to its factual sufficiency, it has not been waived.
In Matter of Jones v Smith (64 NY2d 1003), the Court of Appeals recently determined that the Commissioner’s failure to formally file regulations pertaining to disciplinary hearings for prisoners offended the "notice” component of due process and vitiated the disciplinary proceedings conducted under the temporary rules. Defendant contends that the same analysis pertains here and I agree. While the Jones decision related to a disciplinary matter and not to a violation of the Penal Law, a review of the pertinent statutory provisions demonstrates that the proscription against the possession of contraband set forth in the Penal Law directly incorporates the accompanying rules promulgated by the Commissioner. Pursuant to Penal Law § 205.25 (2), it is unlawful for an inmate to possess "dangerous contraband”, which refers to contraband capable of endangering the security of a detention facility or the safety of individuals therein (Penal Law § 205.00 [4]). "Contraband” in turn is statutorily defined as any item an inmate "is prohibited from obtaining or possessing by statute, rule, regulation or order” (Penal Law § 205.00 [3]). Pursuant to the "Standards of Inmate Behavior — Behavior Prohibited in All Facilities” promulgated by the Commissioner (7 NYCRR part 270), "contraband” is presently defined as "any article that is not authorized by the superintendent or his designee” (7 NYCRR 270.1 [b] [14] [i]) and inmates are prohibited from making, possessing, selling or exchanging "any item of contraband that may be classified as a weapon by description, use or appearance” (7 NYCRR 270.1 [b] [14] [ii]). While this rule serves to expand the statutory definition of "contraband” as envisioned by the language of Penal Law § 205.00 (3), the Commissioner did not file these regulations with the Secretary of State until April 22, 1985 (7 NYCRR part 270), subsequent to the incident in question. Since it is quite clear that the rules affect an inmate’s "liberty” interests and provide "a pattern or course of conduct for the future” (People v Cull, 10 NY2d 123, 126), the rules were not effective and the conviction cannot stand (see, People ex rel. Roides v Smith, 67 NY2d 899; Matter of Jones v Smith, 64 NY2d 1003, supra). Moreover, the majority’s classification of these standards as an order outside *61of the mandate of NY Constitution, article IV, § 8 is unfounded. As both the Jones and Roides decisions confirm, these standards are rules subject to the constitutional filing requirements. That defendant received the booklet entitled "Standards of Inmate Behavior” and knew that possession of the metal rod was unauthorized does not compel a different result (see, People v Cull, supra). Having so concluded, the judgment should be reversed and the indictment dismissed.
Mahoney, P. J., Main and Yesawich, Jr., JJ., concur with Casey, J.; Weiss, J., dissents and votes to reverse in an opinion.
Judgment affirmed.