Marijuana Crimes: Can the Police Merely Allege a Public Location or Public View without Giving More Detail as to the Location of an Incident

Not necessarily relevant to every criminal offense found in the New York Penal Law, many arrests and crimes stem from what the police see in public or plain view. Whether officers with the NYPD or other local police agency stop your car and see a knife inside the vehicle from their vantage point or you’re walking down the street with a marijuana in your hand, the location of your criminal possession of cocaine, marijuana, or a firearm is often relevant not merely to the legality of your stop, arrest and search, but the crime itself. The following case involving an arrest for Fifth Degree Marijuana Possession, NY PL 221.10, is an example of this element and how a criminal complaint against you must be drafted in order to survive (or not survive) a motion to dismiss by your criminal defense attorney.

In People v. Walters, 2013-558 RI CR, NYLJ 1202739865818, at *1 (App. Tm., 2nd, Decided September 17, 2015), prosecutors charged that defendant with marijuana related crimes including Criminal Possession of Marihuana in the Fifth Degree (New York Penal Law 221.10(1)) and Unlawful Possession of Marihuana (New York Penal Law 221.05). Assistant District Attorneys alleged that a police officer had observed the defendant drop a clear ziplock bag containing what a laboratory analysis proved to be marihuana, “at…514 Targee St.,” Richmond County, New York, a “public place” that is “open to public view.”

The issue presented by the defendant and one grappled with by the court was as to the facial sufficiency of the instrument. More specifically, did the information legally establish the crime of NY PL 221.10(1) – the element of   “public place” or “open to public view” by merely providing an address where the incident in question occurred? More directly, was the complaint conclusory and lacking in a greater description that is necessary to establish the location? Said a third way – is it enough to give a location of an incident and allow the court to conclude that it was a public one or must a prosecutor of police officer provide greater detail?

The short answer is that more is better than less.

In People v. McNamara (78 NY2d 626, 634 [1991]), the Court of Appeals held that solely identifying a street address will not satisfied the prosecutor’s burden for legal sufficiency because  “the address could as readily refer to a private driveway as to a residential street” (e.g. People v. Matthews, 115 AD3d 625, 625 [2014]). Analyzing legal decisions involving the Disorderly Conduct statute New York Penal Law 240.20 (not the marijuana crime charged), in addition to the address, other factual claims were necessary. (see e.g. People v. Campbell, 41 Misc 3d 143[A], 2013 NY Slip Op 52057[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2013] [“sidewalk”]; People v. Wilson, 30 Misc 3d 138[A], 2011 NY Slip Op 50221[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011] [“sidewalk”]; People v. Jackson, 26 Misc 3d 133[A], 2010 NY Slip Op 50092[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010 [“in front of” the address]; People v. W.J., 27 Misc 3d 1222[A], 2010 NY Slip Op 50841[U], *2 [Crim Ct, NY County 2010] [“opposite” the address]; People v. Jackson, 17 Misc 3d 788, 792-793 [Crim Ct, NY County 2007] [“at the corner” of two streets]; see also People v. Reynoso, 77 AD3d 528, 528 [2010] [“entry vestibule” of a building (decided under Penal Law §245.00)]; People v. Singh, 47 Misc 3d 136[A], 2015 NY Slip Op 50504[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2015] [“in front of” the address (decided under Penal Law §245.00)]).

The bottom line is that if the police or District Attorney properly allege or draft a complaint providing some specificity as to a location and how that location is public, the issue presented in this blog entry is easily avoidable. At the same time, if they do not provide the relevant information and facts, you, as an accused, may have a legal leg to stand on to seek dismissal of the charges you face. Keep in mind that even with a dismissal, depending on the nature of that dismissal, prosecutors may be able to supersede and rectify their mistake in order to continue the criminal action against you.

To learn more about New York drug, narcotics and marijuana crimes (marihuana in the New York State Penal Law) or New York Desk Appearance Tickets (also called a DAT), please review the information contained in in this entry as well as in the websites and blogs listed below.

New York criminal lawyers representing clients throughout the greater New York City region, Saland Law PC was founded by two former Manhattan Assistant District Attorneys.


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