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His test was essentially an aggregate weight analysis

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.

The defendant moves to dismiss the sale count, claiming that one cannot be guilty of selling more than a pound of marijuana because it has not here been (and purportedly cannot be) established that the mass in fact consisted of more than a pound of marijuana as defined. If the argument is correct, it should not result in dismissal, but, at most, reduction to those classes of sales which contemplate no specific weight level.

The issue is whether the corpus of the sale is provable notwithstanding the conceded absence of expert testimony by which the pure weight of the criminal marijuana, within the nine pound delivery, is proved.

Although there were some discrepancies as to the precise sequence of events, there was proof presented from which a jury could reasonably conclude, beyond a reasonable doubt, if they so choose that these events took place before the police closed in.

There is nothing to support a finding, on pure weight grounds, as to the complete identity or composition of the sampled or unsampled mass. No one knows and apparently cannot know what it all is, except that it all contains marijuana. This condition defeats the marijuana weight-possession count as charged, for the reasons aforesaid, and because marijuana weight, as defined, in possessory weight crimes, is not established on the basis of the defendant’s representations. But when it comes to the defendant’s offer, the shoe is on the other foot, and the defendant’s own words and assurances should be worth something.

An offer to sell may be established without production or delivery of the drug itself. There, the drugs introduced against the defendant were not sufficiently connected to him and were therefore barred from use. The conviction was reversed but the case was remanded for a new trial upon the theory that the People could prove defendant’s guilt on the basis of an offer. It follows that if a sale prosecution based on an offer may be circumstantially sustained with no drugs at all, it may be sustained, a fortiori, where the drugs were seized, produced, and analyzed to contain marijuana, with no proof that it contained anything else. Here, unlike in the possessory requirement, the incompleteness of the analysis would not work against the prosecution, because guilt is, by the criminal statute, posited on the defendant’s own representation and offer, not on the actual purity of the substance as marijuana, as it must be in the possessory-weight count.

At bar, there is actual delivery of 9.3 pounds of a substance, accompanied by representations, negotiations, seizure, and analysis which, moreover, at least circumstantially confirms the offer which criminal defendant may be found to have unequivocally made and carried out.

The Court does not accept the criminal defendant’s contention that in order to prove the offer corpus, he must be shown to have had actual chemical knowledge of one pound purity as opposed to a reasonable basis on which he could conclude that he had the capacity to sell a pound, as defined.

Legions of cases held that drugs corpuses may be proved circumstantially, as to nature and amount, despite destruction, absence or consumption in analysis.

When the substance is entirely consumed not in the laboratory but by the user himself the corpus is not necessarily lost if it can be established circumstantially without scientific analysis. The general rule is, therefore, that corpus delicti may be established circumstantially in drug cases.

Penal Law is pressed upon the Court as mandating that when the term knowingly appears in a statute it is presumed to apply to every element of the offense unless intent to limit its application clearly appears. Hence, the argument goes, the defendant must be shown beyond a reasonable doubt to have known the pure weight because pure weight is an element of the sale crime. The argument fails for two reasons.

To begin with, scientific proof of pure weight is not, in this Court’s view, an element of sale by offer. An aggregate weight sale may be proved by offer without any drug produced at all. Knowledge under Penal Law cannot logically compel the introduction of evidence to demonstrate that the defendant had scientific certainty of the drug’s chemical properties. If, for example, a defendant is charged with selling (as the statute has it) pure weight stimulant, and the chemical tests verify it to be so, it can never be shown that the defendant knew the pure weight, unless it be shown that the sale was preceded by his own unimpeachable laboratory test. To require that a lay defendant scientifically know the drug’s purity as an element of the offer is unimaginable.

Turning the paradigm to this case: were there some way to chemically quantitate marijuana (and to separate leaves from mature stalks, mature stalks from immature ones, plant seeds from seed oil, sterile seeds from fertile seeds, stalk fibers from resin) there would come an hour, whether it be at the end of the chemist’s lifetime or appreciably sooner, when he would, let us suppose, proclaim every speck and particle pure to a weight of over a pound. That being so, the defendant, if his position is correct, would escape liability as a matter of law, on the ground that he cannot possibly be proved beyond a reasonable doubt to have known what it took the chemist days, months, or years to conclude.

The same argument may be made in any drug sale case be it under a pure or aggregate weight statute. Ergo, no drug sale offer whether chemically confirmed or not, would be tenable unless founded upon proof of a pre-sale analysis conducted by the defendant, and only then, if flawlessly performed to implant not only a reasonable belief as to the make-up of the drug, but actual chemical knowledge of its botanical components. It remains only then to be argued that the standard had not been met because the defendant’s laboratory test substances were not shown to have been standardized. Accordingly, the motion to dismiss or reduce the first count of the indictment, by which first degree sale is charged, is denied.

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