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Residue of a controlled substance is not punishable

A cop said that, the defendant was arrested on August 2, 1986, and charged with Criminal Possession of a Controlled Substance in the Seventh Degree and Unlawful Possession of Marijuana in an accusatory instrument which reads, in pertinent part, as follows: Deponent states that defendant knowingly and unlawfully possessed a controlled substance, to wit, marijuana and cocaine possession in that deponent recovered from defendant’s pants pocket one clear plastic bag containing marijuana, six vials of cocaine in “crack” form and one glass “crack” pipe containing residue.

A Lawyer said that, On August 26, 1986, the count charging the defendant with Unlawful Possession of Marijuana was dismissed after the laboratory analysis by the New York City Police Crime Laboratory disclosed that no marijuana possession was present in any of the material recovered from defendant. However, the laboratory report did disclose that cocaine residue was present in the six glass vials and the glass tube recovered from the defendant.

A New York Criminal Lawyer said that, the defendant has moved pursuant to Criminal Procedure Law §§ 170.30(1)(a) and 170.35(1)(a) to dismiss the information for facial insufficiency on the ground that possession of cocaine residue alone is not sufficient to sustain a charge of Criminal Possession of a Controlled Substance in the Seventh Degree.

The issue in this case is whether the possession of cocaine residue is sufficient to support a charge of Criminal Possession of a Controlled Substance in the Seventh Degree.

The court in deciding the case, cited the provisions of Criminal Procedure Law § 140.45 provides for the dismissal of an accusatory instrument whenever it is determined that the instrument does not meet the prerequisites of sufficiency set forth in Criminal Procedure Law § 100.40 and “the court is satisfied that on the basis of the available facts or evidence it would be impossible to draw and file an accusatory instrument which is sufficient on its face.”

The three requirements of sufficiency laid out in CPL Section 100.40 are: 1) that the information conform to the specifications of Criminal Procedure Law § 100.15; 2) that the allegations in the factual part of the information “provide reasonable cause to believe that the defendant committed the offense charged (§ 100.40[1][b] ); and 3) the “non-hearsay allegations of the factual part of the information establish, if true, every element of the offense charged”.

Article 100 of the Criminal Procedure Law governs the actual form and content of the information and misdemeanor complaint, and provides in section 100.15(3), that “the factual part of such instrument must contain a statement of the complaint alleging facts of an evidentiary character supporting or tending to support the charges.” That section also reiterates the requirement that “every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations”.

Penal Law § 220.03 provides that a person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he “knowingly and unlawfully possesses a controlled substance.”

In the instant matter, a minuscule quantity of a controlled substance, analyzed and characterized as residue, was recovered from the defendant. The cocaine residue, while analytically detectible, was no longer a drug in usable form. The defendant could not use this substance to engage in the types of conduct the drug crime possession statute was meant to prohibit–i.e., the defendant could not use this substance to induce an artificial state, transfer it for another person’s use, or sell it. The intentions of the legislature in structuring the drug crime laws can be traced through their evolution and revisions in the statutory structure.
To a greater degree than former law, increased punishment for possession or sale of certain quantities of proscribed substances, especially those which were not quantitatively graded before, was correlated to a particular view of the dangerousness of the individual substances or their categories, both in terms of their deleterious effect on the individual abuser and the likelihood of their broad distribution either for profit or as gifts. Clearly the legislature was showing its concern for the trafficking of drugs and the effect particular drugs have on those who use them. The legislature demonstrated further concern for efficient drug criminal law enforcement by enacting changes in 1979 in the drug laws.

Implied in the legislature’s change in the statutory structure is a need to evaluate and reevaluate the severity of both the criminal conduct and the punishment for such conduct with an eye toward efficient drug law enforcement. With a similar focus, this court concludes that possession of mere residue of what was a controlled substance does not violate Penal Law § 220.03. The potential abuse in possessing residue does not rise to conduct which the legislature contemplated as criminal.

For the foregoing reasons, the court held that the defendant’s motion to dismiss the information is granted.

Cocaine and marijuana possession is a serious offense. There is a need for a competent and reliable counsel in order to defend your charges. Call us at Stephen Bilkis and Associates, our New York Criminal Attorney and/or New York Drug Attorney can help you.

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