Marijuana & Criminally Using Drug Paraphernalia: Marihuana May Not be Applicable to Paraphernalia Crimes in New York

NY criminal defense attorneys and their clients should take notice. Recently, New York County (Manhattan) Criminal Court Judge Elisa S. Koenderman rendered a decision in People v. Carlos Rivera, 2008NY031540, finding that it is not sufficient to support a charge of Criminally Using Drug Paraphernalia in the Second Degree (New York Penal Law 220.50[2]) where the drug in question is marijuana. In other words, the criminal intent must relate to narcotics or stimulants. Marijuana is neither type of contraband. Although the decision is applicable only in the realm of the charge of Criminally Using Drug Paraphernalia, this decision is one that experienced New York criminal defense attorneys and criminal defense law firms, such as the former Manhattan prosecutors of Crotty Saland PC, should add to their arsenal.

In the instant matter, the complaint alleged that the police arrested the defendant after they found one plastic bag containing marihuana, a scale and over fifty small ziplock bags in his apartment. Additionally, the defendant admitted the contraband was his.

The criminal defense attorney argued the complaint was facially insufficient to support the charge of Criminally Using Drug Paraphernalia because marihuana, not a narcotic drug, was the only “drug” seized. Furthermore, the criminal defense attorney asserted that the scale, bags and possession of material suitable to and intended for use in the packaging of marihuana cannot be considered drug paraphernalia. The defendant’s counsel also claimed that according to New York Penal Law 220.50(2), criminally using drug paraphernalia requires the knowing possession of “any material suitable for the packaging of . . . narcotic drugs or stimulants under circumstances evincing an intent to use . . . the same for the purpose of unlawfully manufacturing, packaging or dispensing . . . any narcotic drug or stimulant.” Lastly, both the Penal Law and Public Health Law specifically define marihuana and differentiate it from narcotic drugs and stimulants.

Agreeing with the defendant, the court noted that NY PL 220.50(2) “is only applicable when the circumstances evince an intent to participate in the illegal distribution of narcotic drugs or stimulants is persuasive.” Moreover, the court found that “it is clear that NY PL 220.50(2) only applies to circumstances evincing criminal intent regarding narcotic drugs or stimulants, and not to similar circumstances regarding marihuana.” Going even further, the court recognized that the “Legislature…made even more clear by the very structure of the Penal Law as a whole…that Article 220 deals with all controlled substances offenses, whereas marihuana offenses are addressed by an entirely separate article, Article 221.” In dismissing the complaint, the court refused to expand the reach and parameters of New York Penal Law 220.50(2) by defining marihuana as a narcotic drug. At bottom, regardless of whether or not the scale and bags were used for the packaging of marijuana, marijuana is not a narcotic and may not be a basis for the charges relating to drug paraphernalia.

In the event you find yourself involved in any crime or offense associated with marijuana, narcotics or drugs, contact Crotty Saland PC, so that a plan tailored specifically to your needs can by developed and implemented to protect your rights, freedom and integrity.

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