New York Criminal Lawyer Blog

At the trial, the People’s chemist, whom the Court found to be both competent and commendably candid, acknowledged that he could not, to a reasonable degree of scientific certainty, rule out the presence or gauge the amount of non-marijuana. His test was essentially an aggregate weight analysis, from which he neither sought nor was able to determine what part of the mass was marijuana as defined, and what was not. He could and did state that the 9.3 pounds of mass were divided among twenty bags and that each bag contained marijuana. But he could not state the weight of the marijuana within each bag or within each of the samples he tested from each bag. He could not exclude the presence of ground mature stalks, stalk fibers, sterile seeds, or any of the other matter specifically listed under the statute as non-marijuana. Nor could he chemically rule out the presence of oregano, sage, or other “adulterants,” in any degree, large or small. In short, he could not give an expert opinion as to the weight of the marijuana as defined, on the ground that marijuana is not susceptible of quantification.

This, of course, is no reflection on the chemist or his procedures. The expert stated that the statute, as written, can be met, only if he were, in his words, to perform a separate test on each of the countless ground particles which comprise the mass. If so, such a procedure would be quite obviously untenable.

The defendant moves to dismiss the sale count, claiming that one cannot be guilty of selling more than a pound of marijuana because it has not here been (and purportedly cannot be) established that the mass in fact consisted of more than a pound of marijuana as defined. If the argument is correct, it should not result in dismissal, but, at most, reduction to those classes of sales which contemplate no specific weight level.

A New York Marijuana Possession Criminal Lawyer said that, petitioner in this CPLR Article 78 proceeding, moves by order to show cause to annul and vacate the October 14, 2009 determination by respondent New York City HOUSING AUTHORITY (NYCHA), which terminated her tenancy in the Red Hook West House, at Apartment 2A, 80 Bush Street, Brooklyn New York. The NYCHA Board approved the September 28, 2009 decision of NYCHA Hearing Officer which found petitioner ineligible for continued occupancy of her apartment. Petitioner claims that NYCHA is discriminating against her because she “self-medicates” with marijuana possession to alleviate her epilepsy disability and NYCHA failed to provide her with an accommodation for her disability.

A New York Drug Possession Criminal Lawyer said that, respondent NYCHA opposes the instant order to show cause and seeks dismissal of petitioner’s petition, alleging that: (1) NYCHA terminated petitioner’s tenancy after establishing that in the three years prior to her administrative hearing petitioner pled guilty five times to criminal possession of a controlled substance in the seventh degree; (2) petitioner has not established that she has a disability; and, (3) petitioner is not entitled to an accommodation for her ongoing illegal drug use. Further, NYCHA claims that its determination to terminate petitioner’s tenancy is: consistent with the law; not arbitrary, capricious or an abuse of discretion; supported by substantial evidence and, proportionate to petitioner’s offenses.

A New York Criminal Lawyer said that, petitioner and her family have been residents of Apartment 2A, 80 Bush Street, Brooklyn, New York for a number of years. The apartment is located in public housing owned and operated by respondent NYCHA. NYCHA charged Petitioner several times in the last decade with non-desirability and breach of her lease. Petitioner and respondent, on May 22, 2006, executed a stipulation of settlement of various charges against petitioner with respect to the February 8, 2006 specification of charges against petitioner. These charges alleged, among other things: that petitioner violated her previous stipulated tenancy probation, because her sons, unlawfully possessed or possessed controlled substances with intent to sell from petitioner’s apartment, on various dates; and, petitioner unlawfully possessed crack cocaine at her apartment on February 3, 2004. In her May 22, 2006 stipulation, petitioner agreed that: her sons are not authorized to reside in her apartment, at 80 Bush Street; her probation would continue until September 26, 2011; and, that she “understands that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up to and including termination.” NYCHA approved the Stipulation on June 22, 2006. Subsequently, NYCHA charged petitioner with non-desirability, breach of its rules and regulations, and chronic rent delinquency, on April 27, 2009. Respondent, among other things, charged petitioner with: unlawful possession of marijuana with intent to sell and acting with others, including a third son, to do so on November 21, 2008; permitting illegal drug activity in her apartment; unlawfully possessing at her apartment controlled substances on October 6, 2006, December 6, 2006, February 20, 2009 and April 20, 2007; allowing unauthorized occupants to reside in her apartment; violating terms of her lease by failing to refrain from illegal activities at her apartment; and, failing to have individuals on the premises with petitioner’s consent refrain from illegal activities referred to in petitioner’s lease.

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The defendant moves for a trial order of dismissal upon a charge of sale and marijuana possession of approximately nine pounds, under the statute by which the sale of more than a pound of marijuana is punishable as a class D felony, and marijuana possession of more than a pound is punishable as a class D felony.

The motion followed the testimony of the People’s expert witness, a New York State Police chemist, who testified that while marijuana was present, in some unknown amount, in each of the samples taken from each of the twenty bags which comprised the alleged sale, he did not and cannot plausibly perform the kind of quantitative analysis by which the weight of the marijuana can be determined.

The issue goes to the very integrity of the statutory scheme by which marijuana has been classified, under the Marijuana Reform Act of 1977, as a commodity to be measured, for purposes of criminal gradations, under a pure weight standard. It is argued that the statute, as written, forecloses conviction, in this case, for anything but minute quantities, whether possessed or sold. The Court believes the defendant’s legal position to be, in part, correct.

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A New York Marijuana Possession the Defendant is charged with Criminal Possession of Marijuana in the Fifth Degree, pursuant to Penal Law § 221.10(1), by an information which alleges, in pertinent part, that on September 8, 2008, at about 12:28 a..m., at Polk Avenue/Lincoln Street, Franklin Square, New York, the Defendant “was observed in possession of a clear plastic wrapper containing a greenish brown leafy substance believed to be marijuana.

The Defendant now moves for, inter alia, an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30, 170.35 and 210.25(1). The Defendant bases this motion upon the failure of the People to annex a Forensic Evidence Bureau report) providing a laboratory chemical analysis of the substance seized from the Defendant. The People oppose this branch of the Defendant’s motion arguing that the allegations set forth in the information adequately inform the Defendant of the charges against him, prevent the Defendant from being tried twice for the same offense, and provide reasonable cause to believe that the criminal Defendant committed the crime with which he is charged. The People further argue that the deponent’s observations are not hearsay and are based upon the officer’s years of experience and training in narcotics identification. Alternatively, the People, who concede that they are not presently in possession of an FEB, claim that “one will be provided in the near future negating the need to dismiss the instant charge.”

The information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereo, and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” CPL § 100.15(3) based upon either the complainant’s personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which “provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information. “Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.20

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A child was born to Respondent in September 2006 with a positive toxicology to cocaine. She was premature, underweight and in respiratory distress. No father was named on the birth certificate, however, the mother has identified someone as the child’s father.

A New York County Criminal attorney said that in October 2006, the New York Child Services (NYCCS) filed a neglect petition against respondent. The petition alleged that respondent and the baby both tested positive for cocaine on the date of the birth, that respondent was not regularly and voluntarily participating in a drug treatment program, that respondent had no stable means of support or residence, that she failed to make any plans for the child, that she only visited the child in the hospital once, that she provided no contact information and that her whereabouts were unknown.

NYCCS requested and the Court granted a remand of the child. Pursuant to Family Court Act §1017, the Court directed NYCCS to conduct an immediate investigation of all of the family members who had expressed an interest in caring for the child, including the maternal aunt, the maternal grandmother and the maternal grandfather. Shortly thereafter, NYCCS certified the child’s maternal aunt and her fiancé, as kinship foster parents and the child was placed in their home.

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