People v. Singleton

• Decision Date: 26 July 1991
• Docket Number: AP-7
• Citation: 574 N.Y.S.2d 631,151 Misc.2d 1051
• Parties: The PEOPLE of the State of New York v. Tony SINGLETON, Defendant
• Court: New York City Court

Page 631

574 N.Y.S.2d 631

151 Misc.2d 1051

The PEOPLE of the State of New York v. Tony SINGLETON, Defendant.

Criminal Court of the City of New York New York County, Part AP-7.

July 26, 1991.

Robert M. Morgenthau, Dist. Atty. (Tara Christie, Asst. Dist. Atty., New York County), for the People.

Shailly Agnihorti, of the Legal Aid Soc., for defendant.

WILLIAM I. MOGULESCU, Judge:

The defendant, Tony Singleton, was arraigned upon a felony complaint which charged him with criminal sale of a controlled substance in the third degree (PL § 220.39(1)-- a class B felony). On May 10, 1991, the People filed and served a laboratory report which indicated "no controlled substance present." As a result, the People reduced the charge to Public Health Law § 3383(2)--Imitation Controlled Substances--a class A misdemeanor. By notice of motion and memorandum in support of such motion, dated June 5, 1991, and June 21, 1991, respectively, defendant moves for various forms of relief.

Motion to Dismiss

Defendant moves to dismiss the accusatory instrument pursuant to CPL §§ 100.15, 100.40, 170.30 and 170.35. Defendant puts forth two arguments in support of his motion. Defendant contends that his prosecution under § 3383 of the Public Health Law is contrary to the legislative intent of that provision. Second, defendant argues that the People have failed to prove an essential element of the charge.

Public Health Law § 3383(2) provides that, "it shall be unlawful for any person to manufacture, sell or possess with the intent to sell, an imitation controlled substance." PHL § 3383(1)(c) defines "imitation controlled substance" as:

... a substance, other than a drug for which a prescription is required pursuant to article one hundred thirty-seven of the education law, that is not a controlled substance, which by dosage unit appearance, including color, shape and size and by representation is represented to be a controlled substance, as defined in the penal law. Evidence of representations that the substance is a controlled substance may include but is not limited to oral or written representations by the manufacturer or seller, as the case may be, about the substance with regard to:

(i) its price, nature, use or effect as a controlled substance; or (ii) its packaging in a manner normally used for illicit controlled substances; or

(iii) markings on the substance. (emphasis added).

Defendant avers that his prosecution under Public Health Law § 3383 "distorts the legislative intent." In support of this contention defendant puts forth three arguments. First, defendant argues that the plain language of the statute reveals that the law was intended to curb the sale of imitation controlled prescription drugs, of which heroin is not one. In support of this claim, defense counsel points to the definition of "manufacture" and "markings" as those terms are defined in § 3383(1)(a) and (b). In further support of his position, defendant cites to subdivision three of the statute, which makes it unlawful to possess or use equipment to reproduce any identifying mark or trademark upon a substance with the intent to manufacture an imitation controlled substance. Second, defendant claims that PHL § 3383 was enacted to curb the increase in overdoses associated with "look-alike" tablets. Counsel argues that in order to fall within this purported health and safety concern of the statute the People must first assert that the substance actually sold was harmful to the user. Third, defendant points to subdivision five of the statute as further evidence of the legislative intent to limit the sale of otherwise "legitimate" controlled substances. ¹

The People respond that both the language of the statute and its legislative history, as well as case law, support the appropriateness of the charge of PHL § 3383.

When called upon to ascertain the meaning of a statute a court must first look to the plain meaning of the statute. See Doctors Council v. New York City Employees' Retirement Sys., 71 N.Y.2d 669, 674-75, 529 N.Y.S.2d 732, 525 N.E.2d 454 (1988); Matter of Daniel C., 99 A.D.2d 35, 41, 472 N.Y.S.2d 666 (2d Dept.1984); aff'd, 63 N.Y.2d 927, 483 N.Y.S.2d 679, 473 N.E.2d 31 (1984). "When the meaning of the statute is clear, construction is unnecessary; in such a case, the duty of the court is to carry out the expressed legislative intent, not to read a different intent into the law by the aid of canons of construction." McKinney's Cons. Laws of N.Y., Book 1, Statutes § 91, at 174.

The statute in question clearly defines what is meant by an imitation controlled substance. PHL § 3383(1)(c), the provision which defines imitation controlled substance, states that an " 'imitation controlled substance' means a substance ... represented to be a controlled substance, as defined in the penal law." Penal Law § 220.00(5) in turn states that " 'controlled substance' means any substance listed in schedule I, II, III, IV or V of section thirty-three hundred six of the public health law...." Schedule I(c)(11) of PHL § 3306 lists heroin as a controlled substance. Thus, the statute under which defendant is charged clearly defines, on its face, what is meant by an imitation controlled substance, and that definition most certainly encompasses imitation heroin. The statute goes on to prohibit the "manufactur[ing], sell[ing] or possess[ing] with the intent to sell, an imitation controlled substance." (Public Health Law § 3383[2].) The instant information clearly alleges that the defendant sold and also possessed with the intent to sell an imitation controlled substance. The defendant's argument that the legislature did not intend to criminalize the sale of imitation heroin when it enacted the statute is rejected.

While a review of the legislative history reveals that the problem the Legislature most had in mind when they enacted PHL § 3383 was a...