People v. Davis
| Decision Date | 05 September 1978 |
| Citation | 95 Misc.2d 1010,408 N.Y.S.2d 748 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Leroy Frank DAVIS and Stanley L. Houston, Defendants. |
| Court | New York County Court |
John R. King, Dist. Atty., D. James O'Neil, of counsel, for plaintiff.
Bruce A. Petito, Poughkeepsie, for defendant Houston.
The defendant, Stanley L. Houston, moves for a trial order of dismissal upon a charge of sale and possession of approximately nine pounds of marijuana, under the statute by which the sale of more than a pound of marijuana is punishable as a class D felony (Penal Law 221.55, L.1977, ch. 360), and possession of more than a pound is punishable as a class D felony (Penal Law 221.25, L.1977, ch. 360).
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 For the reasons which follow, the Court believes the defendant's legal position to be, in part, correct.
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.
Criminal responsibility for the sale and possession of controlled substances in New York is, for the most part, made to depend on the amount involved.
Based, presumably, on the varying characteristics of controlled substances, the legislature has, where the level of culpability is influenced by the amounts sold or possessed, devised two measurement standards with penalties corresponding to weight. Some drugs, such as methadone, are to be measured on a "pure weight" basis. Others, such as narcotics, are measured under an "aggregate weight" basis. When a statute makes criminal, for example, the unlawful sale of "five milligrams or more of (LSD)" (Penal Law 220.41(3)) a pure weight standard is contemplated, and a conviction may rest only upon the presence of five milligrams or more Of LSD, as opposed, say, a liquid weighing over five milligrams containing LSD in some unspecified amount. The latter standard is what has come to be called "aggregate weight," the former "pure weight." The difference is well established, and upon that difference rides the most profound chemical and legal implications. 1
Before 1977 (L.1977, ch. 360), marijuana was criminally graded on an aggregate weight basis. The immediate precursor, for example, of the class D felony marijuana possession statute (former Penal Law 220.06(3)) provided that "A person is guilty of Criminal Possession of a controlled substance in the sixth degree when he knowingly and unlawfully possesses . . . one or more preparations, compounds, mixtures or substances of an aggregate weight of one-quarter ounce or more Containing (marijuana) (emphasis supplied)."
Under that formulation, any quantity of marijuana contained within a blend weighing in excess of one-quarter ounce would satisfy the standard, though the marijuana itself be less than one-quarter ounce. The nature of the criminal substance was relevant, and indeed imperative to establish a legal case, but the amount or quantity of marijuana contained within the mix was generally not. 2 Police laboratories did not customarily, if at all, perform quantitative analyses in marijuana cases, nor was any such test statutorily required or decisionally perceived.
Came then the 1977 statutory change. Marijuana possession and sale was converted from an aggregate weight to a pure weight crime, where larger amounts were involved. Indeed, the 1977 possession format lists no less than six levels of culpability for marijuana possession based on the weight of the amount of marijuana possessed, ranging from C felony possession (over ten pounds; Penal Law 221.30) to violation possession (any amount; Penal Law 221.05).
With regard to sales, there are now five categories, ranging from C felony sale (over a pound; Penal Law 221.55) to misdemeanor sales (Penal Law 221.40; Penal Law 221.35). Under all of these gradations, severity of the crime pivots on the amount of marijuana involved. 3 The language used in What is marijuana? It is defined under Section 3302(20) of the Public Health Law, and, for better or worse, that definition governs (Penal Law 220.00(6)). The section reads as follows:
these statutes is undeniably that of pure weight. The weight of the marijuana itself therefore determines the degree of the crime.
"Marihuana" means all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.
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.
This Court does not and need not conclude that every marijuana possession prosecution based on volume is inevitably doomed to failure under existing law. Conceivably, instances may arise in which test samplings may legally establish the existence of pure marijuana in the unsampled remainder, by drawing a statistical analogy to the procedure upheld in People v. Argro, 37 N.Y.2d 929, 379 N.Y.S.2d 840, 342 N.E.2d 601. There, the defendant had 148 glassine envelopes in ten batches. On the basis of the discovery of heroin in ten sample envelopes, it was possible to conclude that the average weight, in each envelope, was 63 milligrams, and, by extrapolation, (multiplying the average weight by the number of envelopes) to further conclude that the defendant possessed a mass of more than one-third ounce Containing heroin. (See, also, Dixon v. State, Ind., 357 N.E.2d 908; People v. Gilmour, 78 Misc.2d 383, 35 N.Y.S.2d 52; State v. Hults, 9 Wash.App. 297, 513 P.2d 89). But if that is at all possible a point which must be left to experts it will not be easy, and may be legally insufficient.
Heroin is an aggregate weight drug, and the chemist need only have found heroin in any amount, however small, in each bag, as a basis for concluding that the rest of the bags Contained heroin. Further, it would have been time consuming but nonetheless possible to test each of the 148 envelopes to see whether they each contained any heroin.
Pure weight drugs, however, cannot as readily lend themselves to the process of analysis by extrapolation. Each heroin container need only be tested once. To extrapolate pure weight marijuana, it would, presumably, be necessary to test a sufficient number of samples or particles from within each bag in order to make a finding as to the weight and purity of the particular sample if it can ever be done and to then test a large enough number of bags from which to draw conclusions as to the entire mass, all of which must be shown to be pure to the statutory weight level, by extrapolation or otherwise, beyond a reasonable doubt.
Even if extrapolation is a valid procedure to test for pure marijuana assuming that the Court of Appeals will extend the Argro formulation to pure weight marijuana this case will simply not admit of it, for it was neither proved nor attempted by the People's expert, who commendably stated that he could not, with reasonable scientific certainty, testify as to the weight of the marijuana in the case at bar. If marijuana cannot be quantified, then no amount of extrapolation can change that. The Court does not presume to have the scientific knowledge as to whether it is so.
This statutory curiosity was flagged at the earliest time by the commentator who forecasted its perplexities, and the implications of change from aggregate to pure weight classification. (See McKinney's Practice Commentary, Arnold D. Hechtman, Penal Law Article 221, 1977-78 supplement, p. 54-55).
An aggregate weight standard has been and would be constitutionally acceptable. (People v. Daneff, ...
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