New York City Marijuana Arrest based on Tossed Joint thrown out because of Facial Insufficiency

New York Marijuana Arrests are especially high in New York City. Smoking pot in public. Usually the defendant was smoking in a park or had the unique scent of marijuana emanating from their possessions before the New York City Police intervene. In People v. Velez, 2015CN008005, NYLJ 1202765159918, at *1 (Crim., NY, Decided August 12, 2016), the Defendant was charged with one count of Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10 [1]) and one count of Unlawful Possession of Marihuana (Penal Law §221.05). As is often the predicate of a great many arrests, stops, searches, seizures and sometimes frisks, the New York City Police Officers swore that

“I observed the defendant holding a marijuana cigarette in a public place and open to public view. I then took the marijuana, one cigarette containing marijuana, from the ground where I observed the defendant discard it. I took marijuana, two bags containing marijuana not burning or open to public view, from the defendant’s pocket. I observed Police Officer Christopher O’Connor, Shield # [] of the Midtown North Precinct also take five bags containing marijuana from a container in the defendant’s bag…I believe the substance is marijuana based upon my professional training as a police officer making marijuana arrests, the odor emanating from the substance, an observation of the packaging, which is characteristic of marijuana, and a field test that confirmed that the substance is marijuana.”

The Defendant was arrested  for the marijuana that the defendant allegedly threw to the ground. Was it in a public place? As The New York Law Journal Reports, “[a] Manhattan judge has tossed out a drug possession charge for a man accused of holding a marijuana cigarette in public, finding that the complaint against him did not adequately describe the public place where he allegedly committed the offense.” 

A person is guilty of Criminal Possession of Marihuana in the Fifth Degree when “he knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view.” (Penal Law §221.10 [1]). “Public place” is defined as “a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.” (Penal Law §240.00 [1]). A complaint that lacks factual allegations describing the “public place” of the offense and merely relies on otherwise “conclusory statements that do no more than track the language of Penal Law §221.10(1)…fails to meet the reasonable cause requirement and should be dismissed” (People v. Afilal, 26 NY3d 1050 [2015]).

The case lingers on whether the joint, the marijuana, was actually in a public place. The Court finds that “[t]he word ‘ground’ indicates the surface of the earth; a place a person might tread or stand. Grounds, however, may be public or private, and nothing in the instant complaint permits the court to reasonably infer one or the other.” Indeed, the accusatory instrument, as it was likely parroted in several other arrests, reads nearly verbatim of what the statute requires. Often the toil of many criminal defense attorneys seeking an early dismissal, on its face this complaint does not appear to be facially sufficient but, here, the Judge adheres to that statutory requirement: “To be facially sufficient, an information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged.” (citing CPL 100.40 [1] [b], [c]; People v. Alejandro, 70 NY2d 133 [1988]).

The Court holds that “[a]s the public place element is insufficiently plead, the People have failed to establish reasonable cause to believe every element of the offense charged. Defendant’s motion to dismiss count one charging Criminal Possession of Marihuana in the Fifth Degree (Penal Law §221.10 [1]) is granted.” Case dismissed – The case is People v. Velez, 2015CN008005. Should you find yourself or a loved one arrested for marijuana possession, call the Law Offices of Cory H. Morris for a criminal defense attorney: 631-450-2515.

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