People v Elder

[*1] People v Elder 2012 NY Slip Op 50970(U) Decided on May 31, 2012 District Court Of Suffolk County Kelley, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 31, 2012
District Court of Suffolk County

The People of the State of New York, Plaintiff,

against

Sean M. Elder, Defendant.



2011 SU 048495



Appearances:

The People by Thomas J. Spota, District Attorney (Olivier Roche, Assistant District Attorney).

Legal Aid Society of Suffolk County by Robert C. Mitchell (Catherine Lovly, Associate Counsel).

Chris Ann Kelley, J.

Defendant, charged with criminally possessing a hypodermic instrument (PL § 220.45), seeks dismissal of the accusatory instrument, an information, on grounds of insufficiency (CPL §§ 100.40(1)(c), 170.30(1)(a),170.35(1)(a)).

For an information to be sufficient, every element of the offense charged must be established by nonhearsay factual allegations in the information itself or any supporting depositions (CPL § 100.40(1)(c)). The offense charged here, PL § 220.45, reads in pertinent part that "[a] person is guilty of criminally possessing a hypodermic instrument when he or she knowingly and unlawfully possesses...a hypodermic syringe or hypodermic needle. It shall not be a violation of this section when a person obtains and possesses a hypodermic syringe or hypodermic needle pursuant to section thirty-three hundred eighty-one of the public health law."

Public Health Law § 3381(2) contains the definition of unlawful possession (see PL § 220.00(2)). It reads in part "[i]t shall be unlawful for any person to...possess a hypodermic syringe or hypodermic needle unless such possession has been authorized by the commissioner [of health] or is pursuant to a prescription, or is pursuant to subdivision five of this section." Subdivision 5, through a reference it contains to subdivision 1, authorizes a person eighteen years of age or older to possess no more than ten hypodermic syringes or hypodermic needles, and then only if he or she obtains them from a pharmacy, health care facility, or health care practitioner. [*2]

The information is based on the personal knowledge of complainant, a police officer. The verified facts in the information are that "defendant...knowingly and unlawfully possessed/sold a hypodermic syringe or hypodermic needle; in that, defendant did possess a hypodermic needle on his person. His arrest is based in part on the defendant unable [sic] to produce a valid prescription or receipt for the needle." Defendant does not challenge the sufficiency of the allegations establishing his knowing possession of the hypodermic needle. The allegation the hypodermic needle was on defendant's person is sufficient to establish, by reasonable inference, that his possession was knowing. The gravamen of defendant's motion is that the information is insufficient because it fails to state he obtained the hypodermic needle in a manner not permitted under the Public Health Law.

The question is whether an allegation of possession of a hypodermic instrument, without nonhearsay allegations eliminating the possibility that the possession was authorized in any and/or all of the three ways specified in Public Health Law § 3381(2) is sufficient as an allegation of unlawful possession, or whether such allegations must be pleaded for an information charging a violation of PL § 220.45 to be sufficient (see Donnino, 2012 Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 39, PL § 220.45, p 96 at 97).

The opening portion of Public Health Law § 3381(2), set out earlier, is a blanket prohibition on the possession of hypodermic syringes or hypodermic needles. However, if the three circumstances specified in the remainder of that subdivision, under which possession is permissible, constitute exceptions to the statute, then their inapplicability must be pleaded in the information through nonhearsay factual allegations, and thereafter proved at trial by the People, but if these circumstances constitute provisos, they need not be pleaded and proved, although the accused may raise them as a bar to prosecution or a defense at trial (People v. Santana, 7 NY3d 234, 236).

When the language of exclusion is contained in its entirety in the same Penal Law provision defining the offense, a legislative intent to create an exception which must be pleaded often is found, but when the language is located in another statute, a determination of an intent to create a proviso usually is the result (People v. Santana 7 NY3d at 237; see People v. Marotti, 20 Misc 3d 16, 18-19 [Appellate Term, Ninth and Tenth Judicial Districts]).

The statute with the definition of criminally possessing a hypodermic instrument, PL § 220.45, itself does not contain the language specifying the circumstances under which possession of such instruments is lawful. Instead, it contains a reference to Public Health Law § 3381. Subdivision 2 of Public Health Law § 3381 begins with a blanket prohibition on possession of hypodermic needles or syringes, "[i]t shall be unlawful for any person to obtain or possess a hypodermic syringe or hypodermic needle," followed by qualifying language beginning with the word "unless" and applicable, as noted earlier, when the possession is authorized by the commissioner of health, or is pursuant to a prescription, or is pursuant to subdivision 5, which concerns obtaining possession from pharmacies, health care facilities or health care practitioners. [*3]

The placement of the qualifying language outside of the Penal Law reflects a legislative intent that the lawfulness of possession of hypodermic syringes or needles is a proviso to be raised by the accused as a bar to prosecution or a defense at trial, although the placement of the qualifying language outside the Penal Law is not necessarily conclusive. The reasonableness of the result is determinative - whether or not, "as a matter of common sense and reasonable pleading," a ruling that the unauthorized nature of the possession of the hypodermic instrument must be pleaded with factual allegations and proved by the People would best reflect the intent of the legislature (People v. Davis, 13 NY3d 17,31; People v. Santana, 7 NY3d at 237).

This court is of the view that to require the People to plead and negate the existence of lawful possession would require them to go to "intolerable lengths...[which] would serve no useful purpose of narrowing issues or giving notice, but would merely give rise to technicalities that could be used belatedly to stifle an otherwise viable prosecution" (People v. Davis, 13 NY3d at 32 [internal quotes omitted]). Such a reading of PL § 220.45 effectively would mean the People must plead and prove that the commissioner of health did not authorize the accused to possess a hypodermic needle or syringe, that the accused did not obtain such an instrument with a prescription, and that the accused, when he or she was eighteen years of age or older, obtained it from a source other than a pharmacy, health care facility or health care practitioner, or in addition already had been furnished with more than nine other such instruments from one or more of the three approved sources.

A determination that the legislature intended to place this obligation on the People does not appear to be reasonable. Consequently, the court finds that the three exclusions from unlawful possession constitute provisos which the People are not required to plead and prove, and so an information charging a violation of PL § 220.45 does not have to contain nonhearsay allegations establishing the absence of these exclusions in order to be sufficient. An allegation in an information based on personal knowledge that the accused possessed a hypodermic syringe or hypodermic needle satisfies the sufficiency requirements of CPL § 100.40(1). The information sub judice is sufficient and the motion to dismiss it is denied.

[Portions of order omitted for purposes of publication].