Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption

Steven Sharp, Staff Writer

The Appellate Division, Third Department determined that the evidentiary presumption of knowing possession of a controlled substance pursuant to Penal Law § 220.25(1) is unavailable in marihuana cases.1 Recently, the Court of Appeals denied leave despite previously employing the presumption to uphold a finding of substantial evidence of marihuana possession in a police disciplinary proceeding.2 It is my position that the Third Department erred in its decision.  To remedy the situation, I call on the New York State Legislature to amend Penal Law § 220.25(1).

In People v. Dan, two police detectives, Dennis Guiry and Jeffrey Connery, received a tip regarding suspicious behavior involving a blue SUV.3 The detectives walked by the SUV and detected a strong odor of marihuana emanating from the vehicle.4 Guiry and Connery decided to conduct surveillance of the SUV.5 Eventually, the defendant, Migel Dan, used a remote to unlock the SUV and he drove away in the vehicle.6

The detectives followed defendant briefly, pulled him over and asked him to step out of the vehicle.7 A canine unit arrived and a drug detection dog “alerted” to the presence of a narcotic.8 A subsequent warrantless search revealed the presence of almost 13 pounds of marihuana in the trunk of the vehicle.9

At trial, the Supreme Court charged the jury with the automobile presumption, which provides, in pertinent part, “[t]he presence of a controlled substance in an automobile . . . is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found . . . .”10 The Third Department reversed defendant’s conviction holding that “the statutory presumption of knowing possession of a narcotic by occupants of a motor vehicle is not applicable in this case” because the substance at issue was marihuana.11

In determining whether marihuana was a controlled substance, the court looked at Penal Law § 220.00(5) which “expressly excludes marihuana from the definition of a controlled substance.”12 Both of these statutes, according to the Third Department, “reveal[ed] that the language is clear and free from any ambiguity regarding the exclusion of marihuana possession from the application of the automobile presumption.”13 As such, the court refused to interpret and construe the statute and the court also refused to consider provisions of other statutes.14

The Third Department entered new waters, uncharted by the Court of Appeals, by reversing defendant’s conviction, despite the Legislature’s intent and the very purpose of Penal Law § 220.25.  In the process, it not only created a new and unsanctioned exception to the automobile presumption, but one that is ultimately confusing and completely illogical.

The Third Department’s decision contravenes the clear intent of the Legislature.  In 1977, the Legislature sought to create a separate article to define marihuana offenses because the Legislature found that “arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use.”15 The Legislature subsequently created Article 221, which was enacted to exclusively apply to marihuana offenses and the Legislature also amended Article 220 to exclude marihuana so that the new Article 221 would be used to determine the appropriate penalties for marihuana offenses.16 The sole purpose of this act was “to insure that the many people in New York who commit the conduct which this act makes a violation not be subjected to unduly harsh sanctions.”17 The clear purpose of the Act was “to reduce the penalties for possession and sale of marihuana.”18 Therefore, the only reason the Legislature excluded marihuana from the definition of a controlled substance under Penal Law § 220.00(5) was to except marihuana from the penalties articulated in Article 220; not, as the Third Department assumes, to except marihuana from evidentiary presumptions.

This new exception is particularly illogical in light of Penal Law § 220.25 as a whole.  Penal Law § 220.25, subdivision (2) provides, in pertinent part, “[t]he presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.”19 Thus, in the very Penal Law provision at issue, the Legislature expressly referred to marihuana as a controlled substance.  But the Third Department ignored this and refused to look at the provision as a whole.

Under the Third Department’s new exception, a person in the presence of marihuana in the close confines of a vehicle is not presumed to be in knowing possession of the marihuana, while a person in close proximity to marihuana in open view in a room is presumed to be in knowing possession of the marihuana.20 Not only would such a rule belie the Legislature’s intent, but it threatens to undermine the two presumptions.

The Court of Appeals explained the purposes of the automobile presumption:

We do not believe that persons transporting dealership quantities of contraband are likely to go driving around with innocent friends or that they are likely to pick up strangers.  We do not doubt that this can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point.21

The drug factory presumption (Penal Law § 220.25(2)), on the other hand, is narrower because the indicia of reliability are not as apparent.  Innocent friends are likely to go to a friend’s home, even when drugs may be “in open view” and “in close proximity” as opposed to riding around in a vehicle with thirteen pounds of marihuana in the back seat.  But the Third Department ignored these practical realities.

The Third Department’s illogical reading of the statute leads to an absurd and inconsistent result.  In construing statutes, courts are guided by Statutes § 141, where the Legislature mandated that construction of a statute must not “cause objectionable results.”22 More broadly, the construction must not “cause inconvenience, hardship, injustice, mischief, or absurdity.”23 Similarly, courts will avoid a construction “which renders a statute inconsistent.”24

The Third Department’s new rule poses a major threat to law enforcement state-wide and increases, substantially, the burden on prosecutors.  As the Court of Appeals stated, “denying the prosecution the use of any inferential tool in cases like the present one would lead to the practical impossibility of proving actual participation in illegal activities.”25 The Leyva Court voiced its concerns that “[i]n the absence of a legislative presumption in drug cases . . . many drug traffickers could operate with impunity simply by ensuring that the contraband was in some part of the transporting vehicle and not on their persons.”26 Despite the concerns of the Court of Appeals, and despite the Third Department’s determination that the Legislature indicated that the new marihuana laws were “also intended to reduce law enforcement resources expended on prosecuting certain offenses involving marihuana possession and sales,” the Third Department adopted a new rule that will force state-wide law enforcement to expend more resources in an attempt to vitiate every defendant’s “I didn’t know it was there” defense.

For the foregoing reasons, I submit that the Third Department erred in holding that the evidentiary presumption is inapplicable in marihuana cases.

For similar reasons, I call on the Legislature to supersede this decision via a statutory amendment.  There is no practical distinction between driving a vehicle with thirteen pounds of marihuana in the car and driving a vehicle with thirteen pounds of cocaine in the car.  Why does the legislative presumption of knowing possession apply to the latter but not the former?

In both of those situations, absent a presumption, it is arduous, if not impossible, to prove actual participation in illegal activities.  Any number of innocuous reasons can be proffered by a defendant for his presence in the vehicle in an attempt to vitiate proof to the contrary, particularly where the driver or a passenger is not the owner of the vehicle.  To name a few: “I was just along for the drive,” “I had no idea drugs were in the car,” “I just borrowed the car to go pick-up a friend.” The absence of a presumption makes it much more difficult for a prosecutor to show guilt beyond a reasonable doubt and, as a natural consequence, much more difficult to procure plea bargains.

The Legislature has two options: they can either amend Penal Law § 220.25(1) to read, in pertinent part, “[t]he presence of a controlled substance or the presence of marihuana in an automobile . . . is presumptive evidence of knowing possession . . . .”27 or they can create a new provision under Article 221 to codify the presumption.

Whichever way the Legislature decides to go will enable prosecutors to prosecute drug offenders effectively and will supersede the Third Department’s illogical decision.

Kristin Wernig, Eric Schillinger, & Meredith Perry, editors.

________________________________________

1 People v. Dan, 55 A.D.3d 1042 (N.Y. App. Div. 3d Dep’t 2008).

2 See Boyd v. Constantine, 613 N.E.2d 511, 514 (N.Y. 1993) (finding that “[t]he presence of a controlled substance in an automobile . . . is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found.”).

3 Dan, 55 A.D.3d at 1042.

4 Id. at 1043.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 N.Y. Penal Law § 220.25(1) (McKinney 2008).

11 Dan, 55 A.D.3d at 1043.

12 See N.Y. Penal Law § 220.00(5); Dan, 55 A.D.3d at 1043-44.

13 Dan, 55 A.D.3d at 1044.

14 Id.

15 Marihuana Reform Act of 1977, ch. 360, § 1, 1977 N.Y. Sess. Laws 478, 478.

16 § 3, 1977 N.Y. Sess. Laws at 478-80.

17 § 1, 1977 N.Y. Sess. Laws at 478.

18 See N.Y. Penal Law § 221 Practice Commentary (McKinney 2008).

19 § 220.25(2) (emphasis added).

20 Compare § 220.25(1) with § 220.25(2).

21 See People v. Leyva, 341 N.E.2d 546, 549-50 (N.Y. 1975).

22 See N.Y. Stat. § 141 (McKinney 1971).

23 Id.

24 Id.

25 See Leyva, 341 N.E.2d at 550.

26 See id.

27 N.Y. Penal Law § 220.25(1) (McKinney 2008) (proposed language italicized).

2 Comments

Filed under Criminal Law, Health Law

2 responses to “Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption

  1. Anonymous

    The basic thesis of this post seems to be “There is no practical distinction between driving a vehicle with thirteen pounds of marihuana in the car and driving a vehicle with thirteen pounds of cocaine in the car. Why does the legislative presumption of knowing possession apply to the latter but not the former?”

    The answer seems to be very clearly stated by the legislature, and stated but quickly dismissed by the author. There is of course a practical distinction between marihuana and cocaine, the substances are covered by different articles, and the clear purpose of the legislature in creating separate acts was “to reduce the penalties for possession and sale of marihuana.”

    As the author states, the Legislature passed the act removing marihuana from the list of controlled substances to “[i]nsure(sic) that the many people in New York who commit the conduct which this act makes a violation not be subjected to unduly harsh sanctions.” Even though “the court looked at Penal Law § 220.00(5) which “expressly excludes marihuana from the definition of a controlled substance,” and the automobile presumption provides that “[t]he presence of a controlled substance in an automobile . . . is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found, the author finds it illogical that “[t]he Third Department reversed defendant’s conviction holding that “the statutory presumption of knowing possession of a narcotic by occupants of a motor vehicle is not applicable in this case” because the substance at issue was marihuana. If we say that A is not B, and B is subject to treatment C, there is no reason to believe that A should be subject to treatment C absent some other premise.

    The author seems to take a remarkably pro-prosecution perspective that desires prosecution and convictions even when the legislature has made it clear that such an action is inappropriate. While the author is correct that this decision will make marihuana conviction more difficult, this seems to be consistent and not at odds with the legislature’s reasoning about the clear distinctions between marihuana and controlled substances, and the desirability of prosecutions of each offense. The author presents two options that will once again allow for easy prosecutions of marihuana offenses, but ignores the most likely third option, namely that the legislature will do nothing because it intended marihuana to be treated differently from controlled substances, and the courts have made a correct distinction.

  2. Steven Sharp

    As an initial matter, the comment’s attempt to reduce my article to a “basic thesis” misses the mark. To be sure, the lack of a “practical distinction” between marihuana and other controlled substances is a central theme. But the “thesis” of the article is twofold: (1) the Third Department’s decision was illogical (which the comment attempts to address) and (2) the Legislature should amend the Penal Law (which the comment does not address).

    I do not disagree that marihuana and cocaine are vastly different. Correct, the Legislature has mandated steeper penalties for the possession of or the sale of cocaine than for marihuana. Nowhere in my article did I advocate that a marihuana user should be subjected to an equal or greater degree of punishment; that is certainly not my position. But what this comment fails to grasp is the very issue Penal Law Section 220.25(1) addresses: an evidentiary presumption of knowing possession.

    Let me explain how an evidentiary presumption works. Presumptive evidence is “[e]vidence deemed sufficient to establish another fact unless discredited by other evidence” (Black’s Law Dictionary). In every criminal trial for possession of a controlled substance, the prosecution must show, beyond a reasonable doubt, that the defendant knowingly possessed that substance. That, of course, is quite easy to establish if the controlled substance was on the defendant’s person. When, however, the controlled substance is located in the trunk of a car, say thirteen pounds of marihuana, it is not so simple. The existence of an evidentiary presumption imputes knowledge unless the defendant can discredit that presumption.

    When I said there is no “practical difference” between marihuana and cocaine, I clearly meant there is no difference between knowingly possessing the two. Similarly, there is no difference between knowingly possessing a pizza and knowingly possessing chicken fried rice. Sure pizza and chicken fried rice are markedly distinct cuisines, but there is no difference between knowingly possessing the two.

    The notion, espoused by the comment, that an evidentiary presumption is “punishment” is simply not true. Punishment is imprisonment, restitution, etc.; an evidentiary presumption is a rule of evidence and procedure that may be discredited. The argument that the “legislature has made it clear that [prosecution and convictions are] inappropriate” is patently absurd. Whether an evidentiary presumption exists has absolutely no bearing on prosecution or convictions. Even in the absence of a presumption, individuals like Migel Dan, will continue to be prosecuted. In fact, in Dan’s case, he entered a guilty plea. The comment seems to pass over, as did the Third Department, Penal Law Section 220.25(2), which allows knowledge of possession to be presumed when a person is caught in close proximity to marihuana in open view in a room. That the presumption applies in that situation, but not when a person is caught with marihuana in a vehicle, is illogical.

    As a final note, the comment accuses me of being “remarkably pro-prosecution;” I would consider my position to be remarkably logical, particularly when the Legislature has never advocated for less marihuana prosecutions, only lighter sentences in the face of burgeoning prison populations. If the Legislature legalizes marihuana (a position not advocated for or against by this author, but seemingly advocated for by the comment) then the presumption is obviously unnecessary. But so long as marihuana is illegal, the presumption should exist.

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