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His test was essentially an aggregate weight analysis


The defendant moves for a trial order of dismissal upon a charge of sale and marijuana possession of approximately nine pounds, under the statute by which the sale of more than a pound of marijuana is punishable as a class D felony, and marijuana possession of more than a pound is punishable as a class D felony.

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, 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. The Court believes the defendant’s legal position to be, in part, correct.

Criminal responsibility for the sale and criminal 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 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.

Before 1977, marijuana was criminally graded on an aggregate weight basis. The immediate precursor, for example, of the class D felony marijuana possession statute provided that a person is guilty of Criminal Possession of a controlled substance in the sixth degree when he knowingly and unlawfully possession one or more preparations, compounds, mixtures or substances of an aggregate weight of one-quarter ounce or more containing marijuana.

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 is 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. Police laboratories did not customarily, if at all, perform quantitative analyses in marijuana cases, nor was any such test statutorily required or perceived.

Came then the 1977 statutory change where 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 to violation possession.

Illegal drugs are nuisance to the society. Fighting drug related crimes has been a long battle that all countries have not yet won. If you want to win your lawsuit, find a New York Marijuana Possession Lawyer together with the New York Drug Possession Attorney from Stephen Bilkis and Associates. You can also consult a New York Criminal Attorney if you need one.

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