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ARE THERE SUFFICIENT ALLEGATIONS IN THE COMPLAINT THAT THE SUBSTANCE FOUND IS REALLY MARIJUANA?

Sounds obvious, but sometimes it is left out.  In New York, a field test or lab report is not necessary to support the marijuana complaint, but there should at least be some language in the complaint that the officer has training and experience in the identification of marijuana (Dumas Language).


ARE THERE SUFFICIENT ALLEGATIONS THAT DEFENDANT WAS IN ACTUAL OR CONSTRUCTIVE POSSESSION OF THE MARIJUANA?


Possession of the marijuana in New York has to be sufficiently alleged in the complaint.  Possession can be actual or constructive. For "actual" possession, the complaint should allege that the marijuana is in the hand or on the person of Defendant. If the prosecutor's theory is "constructive" possession,  the complaint should adequately allege that the defendant exercised dominion or control over the marijuana even though it was not actually on his/her person.   The Defendant's lawyer can determine whether it is sufficiently alleged that that the marijuana is in plain view of the defendant or that the marijuana was found in an area where the defendant had a sufficient level of control.


IT IS IMPORTANT TO REMEMBER WITH CONSTRUCTIVE POSSESSION  OF MARIJUANA CASES INVOLVING VEHICLES THAT THERE IS NO AUTOMOBILE PRESUMPTION SINCE NEW YORK DOES NOT RECOGNIZE MARIJUANA AS A CONTROLLED SUBSTANCE

Penal Law 221.25 provides that any person found within a vehicle where a “controlled substance" is found is presumed to be in knowing possession of the substance.  But since marijuana is not a "controlled substance" under the Penal Law.  Therefore the presumption under 220.25 does not apply when marijuana is found in a car.  On the other hand, if the marijuana is found in open view in the car, then the police and prosecutor may prosecute the case on a theory that the occupants were in constructive possession of the Marijuana since they could have exercised dominion and control over it and were aware of its presence.


IF THE CHARGE IS 221.15, IS THE MARIJUANA WEIGHT ADEQUATELY ALLEGED?


If the charge is possession of more than two ounces of marijuana under § 221.15, the complaint must allege that the defendant knowingly possessed marijuana and the aggregate weight of said marijuana was more than two ounces.   Occasionally, I represent someone charged with possession of over two ounces of marijuana where the complaint does not have any facts to back up that conclusion.  There should either be a field weight or lab weight alleged, or at least something to support an inference or conclusion that the marijuana weighed more than two ounces.


IF THE CHARGE IS PUBLIC POSSESSION OF MARIJUANA UNDER 221.10, IS THE “PUBLIC PLACE” ELEMENT ADEQUATELY ALLEGED?


Also, if the charge is possession of marijuana in a public place, the lawyer should make sure that the complaint sufficiently alleges the “public place” element.  For example, if the complaint alleges“at the corner of “or “at the intersection of two public streets in New York County”, it will probably be held sufficient.  Or, if the complaint alleges that a police officer observed the defendant in front of a particular address. Avenue in Manhattan, it will probably be held sufficient.  But sometimes the prosecutor leaves this language out of the complaint.  I have had cases where the prosecutor sufficiently alleged that the Defendant was in a public place, but the complaint also alleged that the marijuana was found in the console of client's vehicle, or in the client's socks.   Just because the client is in public and has marijuana, does not mean that the marijuana is in a public place.

Marijuana dismissal checklist for New York cases


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Below are listed a few areas where a New York criminal lawyer can look for problems with a New York marijuana possession complaint:

Marijuana Dismiss NY