People v Bruno
Annotate this CaseDecided on September 19, 2006
County Court, Franklin County
The People of the State of New York
against
Gregory Bruno, Defendant.
The People of the State of New York
against
Abel Rios, Defendant.
I-12-2006
Robert G. Main, J.
Defendant Gregory Bruno, hereafter "Bruno", and defendant Abel [*2]Rios, hereafter "Rios", are each before the Court charged, by separate indictment, with criminal possession of marijuana in the second degree. Although separate criminal proceedings, as indicated in the captions above, the cases are inextricably linked and will be discussed together in this decision and order due to the common issues presented.
The parties in Bruno and Rios have entered into Stipulations in Lieu of Motions. As a result of those stipulations, the People have provided, for the Court's review, the minutes of the Grand Jury presentation which resulted in defendants' indictment.[FN1]
Penal Law § 221.25 provides that,
"[a] person is guilty of criminal possession of marihuana in the second degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marijuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces."
One of the elements of this crime is that the defendant must have "knowingly" possessed the marijuana. This Court's review of the Grand Jury minutes reveals that the marijuana at issue was found in the trunk of a car in which defendant Bruno was a passenger in the back seat and defendant Rios was a passenger in the vehicle's front seat. No evidence was presented with regard to whom the vehicle was registered.
The People provided the grand jurors with the definition of criminal possession of a controlled substance. The prosecutor also defined "the automobile presumption" pursuant to Penal Law § 220.25 (1), as follows,
"[t]he presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found".
That section of the statute goes on to provide three exceptions, none of which apply to the instant matter. After reading the full definition to the Grand Jury, the assistant district attorney advised, "[t]his presumption applies to situations involving marihuana." Whether this quoted instruction is an accurate expression of the law is at the heart of this [*3]Court's review of the Grand Jury minutes. In anticipation of the issue's importance, counsel agreed, in the Stipulations in Lieu of Motions, to submit memoranda of law to the Court on "the issue of whether the auto presumption' applies to cases involving solely marijuana under New York State law."
The Court has reviewed those memoranda, performed its own research of the issue, and canvassed superior courts in two adjoining counties in search of unreported cases addressing the issue. It is evident that there is an ambiguity in the interpretation of the Penal Law which has not yet been addressed by any of the four appellate divisions or by the Court of Appeals.
The automobile presumption specifically references the presence of a controlled substance in an automobile and makes no reference to marijuana. Penal Law § 220.00 (5) defines controlled substance as,
"any substance listed in schedule I, II, III, IV or V of section thirty-three hundred six of the public health law other than marihuana, but including concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of such law" (emphasis added).
The People argue that the automobile presumption does apply to marijuana. The People rely on People v Renaud, 7 Misc 3d 260, holding that the presumption applies to marijuana based upon statutory construction. The court in Renaud points out that marijuana is specifically included in Penal Law § 220.25 (2) which provides, in part,
"[t]he presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance".
The Court in Renaud reasoned,
"the definition flexes to accommodate the very different purposes of the two sections. Recognizing this, the Legislature specifically said, in Public Health Law
§ 3306, Schedule I (d): Unless specifically
excepted' hallucinogenic substances that are
considered to be controlled substances'
include marihuana. Penal Law § 220.25 does
not exclude marijuana from the definition of [*4]
controlled substance for the automobile
presumption purposes and, as previously
observed, expressly implies its inclusion"
People v Renaud, supra at 265 (emphasis in
original).
Simply put, this Court does not agree with the reasoning or the result in Renaud. The court in People v Gabbidon, 10 Misc 3d 728, after considering Renaud failed to agree as well and held,
"[s]imply put, there is no reason to understand that the Legislature intended to include marihuana in the Article 220 controlled substance presumption statute after having specifically excluded it from the Article 220 definition of a controlled substance.
It may be suggested that the Legislature intended that the presumption apply to marihuana just as it does to controlled substance. In other words, the wording of PL § 220.25 may have been an oversight by the Legislature.
It is a general rule of statutory construction, however, that courts are obligated to interpret a statute to effect the intent of the Legislature according to the plain words used by the Legislature. Courts are not to legislate under the guise of interpretation" People v Gabbidon, supra at 730 (citations omitted).
This Court agrees with the reasoning of the court in Gabbidon. Article 220 of the Penal Law, on its face, clearly provides that the automobile presumption does not apply to cases involving marijuana. This Court's inquiry as to whether the County Courts in St. Lawrence County or Clinton County have confronted the issue produces the same result. Two unreported, unrelated decisions by two different judges held that there is no statutory presumption of marijuana in a vehicle.[FN2]
The People also provided the Grand Jury with the definition of possession as, "to have physical possession or otherwise to exercise dominion or control over tangible property." Counsel for defendants argues that the evidence presented to that body is not legally sufficient to show that either Bruno or Rios exercised any dominion or control over the marijuana found in the [*5]trunk of the vehicle. This Court agrees.
For the reasons set forth herein, it is
ORDERED that the motion to dismiss the indictment pending against defendant, Gregory Bruno, be, and the same hereby is, granted; and it is further
ORDERED that the indictment pending against defendant, Gregory Bruno, be, and the same hereby is, dismissed, with prejudice; and it is further
ORDERED that the motion to dismiss the indictment pending against defendant, Abel Rios, be, and the same hereby is, granted; and it is further
ORDERED that the indictment pending against defendant, Abel Rios, be, and the same hereby is, dismissed with prejudice; and it is further
ORDERED that, pursuant to 22 N.Y.C.R.R. § 200.40, defendants Gregory Bruno and Abel Rios are advised (1) that the People have the right to take an appeal; (2) that the defendants have the right to retain counsel to represent them on the appeal or to respond to the appeal pro se; (3) that, if the defendants can show no financial ability to pay for the cost of counsel on appeal, the defendants may make application to the appellate court for assignment of counsel to respond to the appeal; and (4) that the defendants must provide the Court and the defendant's trial counsel with an address where they can be contacted should the People appeal the order of the Court; and it is further
ORDERED that the defendants' counsel herein serve a copy of this decision and order upon the defendants, Gregory Bruno and Abel Rios, and file affidavits of the service thereof with the Court; and it is further
ORDERED that the Clerk of the Court is hereby directed to return the minutes of the Grand Jury presentation, together with the exhibits, vote sheets, and attendance sheets, to the People along with their copy of this decision and order; and it is further
ORDERED that any bail posted in these matters be, and the same hereby is, exonerated and that any surety may submit, in triplicate, a proposed order, together with the original receipt, directing the return of the same to the party posting any bail.
ENTER
___________________________
Franklin County Judge
[*6]
Dated at Malone, New York, the 19th day of September, 2006.
Footnotes
Footnote 1:The People presented the case against each of these defendants together in one presentation to the Grand Jury. In addition, the case presented to the Grand Jury included a third co-defendant whose case is not addressed in this Decision and Order.
Footnote 2: People v Manley (County Ct, St. Lawrence County, May 18, 2004, Nicandri,J.) and People v Nguyen (County Ct, St. Lawrence County, July 27, 2004, Rogers,
A. J.)
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