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CPL 170.40

Defendant is charged with criminal sale of marijuana in the fourth degree and marijuana possession. He now moves to dismiss the information in the interest of justice pursuant to CPL 170.40.

A Queens County Drug lawyer said that defendant is the founder of one of several marijuana buyers Clubs that exist throughout the country. These clubs, in admitted contravention of law, distribute marijuana to those for whom it is medically “necessary.” Defendant is not a physician.

The particular charges in this case arise out of defendant’s sale of a quantity of marijuana to an AIDS sufferer. The sale took place in Manhattan’s Washington Square Park. According to the defendant, the marijuana was distributed at “cost” as part of a humanitarian effort by him to relieve the suffering of persons with AIDS and other diseases. Substantial expert opinion and some anecdotal evidence submitted by the defendant appears to lend support to the proposition that marijuana in fact may have such beneficial effects, particularly in suppressing nausea and inducing appetite, thereby allowing persons suffering from “AIDS wasting syndrome” or undergoing chemotherapy to nourish themselves.

The defendant himself suffers from chronic candidiasis and chronic fatigue immune dysfunction syndrome, which cause him to suffer a number of ailments, including chronic pain throughout his joints and muscles, nausea, and loss of appetite. Defendant also has difficulty sleeping and suffers from “generalized disorientation.” According to defendant’s motion papers, his attempts to alleviate these conditions through conventional means were of no avail. Having heard about the potentially ameliorative effects of marijuana, defendant began using marijuana himself for medicinal purposes. Defendant believes that his marijuana use and the concomitant improved sleeping patterns caused several of his medical conditions to subside.

Based upon this experience, he began distributing free marijuana to persons he felt were in need of the drug for medicinal purposes. As more people sought “medical marijuana” from the defendant, he started a “medical marijuana buyer’s club” to distribute marijuana, at wholesale cost, to its “clients.” Defendant claims that the “club” requires documentation from those seeking marijuana as to their need for the drug.

On the day of his arrest, defendant was observed by the arresting officer selling a bag of marijuana to one of defendant’s “clients.” Defendant was also found to be in possession of eight bags of marijuana at that time.

CPL 170.40(1) provides that a court may dismiss an accusatory instrument if it finds the “existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” A compelling factor is present if the denial of the motion would be such an abuse of discretion as to shock the conscience of the court. The defendant bears the initial burden of setting forth compelling factors in his motion papers. If this burden is not met, the court may summarily deny the motion.. A “trial court’s discretion to dismiss in the interest of justice is an undertaking to be sparingly exercised.”

In support of his motion to dismiss, defendant argues that dismissal is warranted because his distribution of marijuana was part of a “mission of mercy” to help others suffering from medical conditions similar to his. Defendant also cites his absence of a criminal record and the fact that he did not sell the marijuana for profit. In determining this motion, the Court is assuming, without deciding, that the facts set forth in defendant’s moving papers are true. Accordingly, no hearing is necessary, and defendant’s request for a hearing is denied.

In determining whether to dismiss in furtherance of justice, the Court is required to consider the following factors enumerated in CPL 170.40: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

The court must examine and consider these factors “individually and collectively” in order to determine whether such a “compelling factor, consideration or circumstance exists” to warrant dismissal in furtherance of justice.

Defendant is charged with criminal sale of marijuana in the fourth degree. By denominating this offense a Class A misdemeanor, punishable by up to one year of incarceration, the Legislature clearly has expressed its view that it is a serious offense. To the extent that CPL 170.40(1)(a) requires the Court to undertake its own evaluation of the “seriousness” of the offense, the Court also finds the intentional sale of marijuana to be a “serious” matter.

The “circumstances” of this offense, however, require further analysis. Defendant portrays his actions as the principled, humanitarian activity of one who is engaged in a mission of mercy, distributing needed marijuana only to those whose suffering will be relieved by its consumption. He characterizes his personal use and distribution as a “medical necessity”. He notes that his “club” requires documentation of purchasers’ medical need for the substance, which is provided at “cost”.

While conceding that drug possession or distribution is a serious offense” defendant argues that the “distribution of life-saving medication to dying people is not.” While this is undoubtedly true, it begs the question as to the seriousness of the actions of one who distributes a purportedly “life-saving medication,” which is also an illegal drug.

In resolving this question, it seems particularly relevant that, insofar as the record discloses, defendant is entirely without medical or pharmacological credentials. Much of the medical literature that he has submitted in support of the therapeutic value of marijuana emphasizes that it must be administered under appropriate medical supervision. In this case, far from administering marijuana in a controlled, medically supervised environment, defendant admittedly sold it in a public park; and, while he claims to have satisfied himself that the recipient of the drug in fact required it, defendant does not appear to this Court to be an appropriate person to make such determinations.

Indeed, while the Court has assumed that the defendant’s actions are well motivated, the Court cannot condone the distribution of an illegal drug, whose unsupervised consumption might be injurious to those persons whom defendant seeks to help. The distribution of unprescribed legal drugs by unlicensed individuals is a crime; and, although not before this Court, the illegal distribution to the public of legal drugs, with the attendant risks to public safety, would be a serious matter not likely to warrant dismissal under CPL 170.40(1). A fortiori, where the defendant has undertaken the unprescribed, unlicensed and unsupervised distribution of an illegal drug, the Court is reluctant to find a compelling circumstance warranting dismissal.

Finally, in this regard, defendant’s argument that his actions were justified by medical necessity is best left to the trial of this case. It would be premature to express a view as to whether defendant has proffered sufficient proof to warrant the submission of that very narrow defense for consideration by a jury.

The Court disagrees with defendant’s blithe assertion that “no harm was caused by the offense.” The defendant sold an illegal drug in a public park on a summer afternoon. While defendant may not be part of what the People term “the marijuana industry that plagues that park,” anyone observing his actions in this case might find his activities indistinguishable from those of any other marijuana dealer. As such, they contributed to an atmosphere of illegality and casual drug possession or consumption which are hardly conducive to the quiet enjoyment of a park by those who wish to use it for lawful pursuits.

Defendant admits that the evidence of his “guilt” is clear, but proffers a defense of medical necessity. As noted above, a determination as to the merits of this defense must await the trial of this case.

Defendant has no criminal record and appears to be seriously ill. These factors, by themselves do not constitute compelling circumstances warranting dismissal in this case. No such misconduct is alleged.

At this stage of these proceedings it is difficult, if not impossible, to evaluate fairly “the purpose and effect” of any sentence that might be imposed upon this defendant. Of course, the Court has not had the benefit of presentence memoranda or a presentence report.

However, defendant’s contention that there would be “simply no purpose served” by imposing a sentence upon him discounts important considerations of general deterrence and the need to vindicate the principle that, as a general matter, some sanction should attach to an intentional violation of the law..

The Court has considered this factor and cannot agree with defendant’s contention that the “safety or welfare of the community would not be impacted negatively by a dismissal.”

The Court believes that the public has a right to use its parks free of the presence of drug possession or trafficking, let alone judicially sanctioned drug trafficking. To diminish that public right by dismissal of this case “in furtherance of justice” necessarily would have a negative impact on the public welfare.

This is not the case of a defendant engaged in aberrant activity, for which he has expressed remorse and which he is unlikely to repeat. To the contrary, defendant is a “community activist” who admits to the systematic violation of the law through the activity of his Club. Clearly, he believes that his actions are morally correct and, insofar as the Court can determine, he intends to continue with them. However, defendant’s “exercise of moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.”

Under these circumstances, the Court is concerned that granting this motion would to be to judicially approve or appear to approve an ongoing course of criminal conduct in direct contravention of the clear legislative intent in enacting the marijuana laws. A decent regard for the separation of powers militates against such a result. For a Court to so overstep its bounds in the face of an admitted crime, which the defendant fully intends to repeat, would necessarily diminish the public’s confidence in the criminal justice system.

Any court asked to undertake review of the multifarious political and social considerations that usually underlie legislative prohibitory policy should do so with caution and restraint. In this case, the challenged legislation incorporates conclusions or assumptions concerning an array of medical, psychological and moral issues of considerable controversy in contemporary America. In most instances the resolution of such sensitive issues is best left to the other branches of government.

Reflecting this judgment, courts usually review challenged legislative acts with the understanding that they are presumed valid and will be so found unless it is shown that the statute in question bears no rational relationship to a legitimate legislative purpose. The only cases that require a stricter standard of review are those that involve an infringement of a right explicitly enunciated in the Constitution or otherwise recognized as fundamental.

The Court believes these views to be equally sound today; and, of course, the standard for reviewing legislative action remains the same. There being no fundamental constitutional right to possess or sell marijuana, the Court declines to disturb the considered views of the legislature in proscribing its possession or sale.

As the Court of Appeals held in reviewing a constitutional challenge to the marijuana laws in a case:

The criminal statute now before us represents the current and considered judgment of an elected Legislature acting on behalf of the people of this State. Nothing would be more inappropriate than for us to prematurely remove marihuana from the Legislature’s consideration by classifying its personal possession as a constitutionally protected right. The sphere within which we may properly declare a legislative act unconstitutional is extremely limited and clearly does not encompass this case.

For the foregoing reasons, defendant’s motion to dismiss the accusatory instrument on constitutional grounds is also denied.

The law provides that possession or trafficking drugs, however, there are a lot of people who are still engaged in this unlawful acts. Here in Stephen Bilkis and Associates, our Queens County Drug lawyers are here to prosecute these drug dealers. For other criminal matters, you can consult our Queens County Criminal attorneys. Call us now.

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