| People v Dan |
| 2008 NY Slip Op 08030 [55 AD3d 1042] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Migel Dan,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 10, 2006 inAlbany County, upon a verdict convicting defendant of the crime of criminal possession of marihuana inthe first degree.
On June 28, 2005, after receiving a call from a resident of the City of Albany, detectives DennisGuiry and Jeffrey Connery from the Albany Police Department went to the caller's home and, whilethere, saw a blue Hyundai Santa Fe (hereinafter the SUV) parked on the road in front of the caller'shouse. During the course of their conversation, a red van drove by and significantly slowed down as itpassed the SUV. Guiry and Connery subsequently went over to the SUV and, despite not being able tosee any visible contraband through the windows, detected a strong odor of marihuana emanating fromthe crack in the door. As a result, they decided to set up surveillance of the SUV and, shortlythereafter, saw defendant walk to the SUV, use a remote to unlock it and drive away.
After following defendant, the detectives witnessed him pull over and they went up to the car,asked for his car keys and asked him to step out of the vehicle. A canine team subsequently arrived atthe scene and, upon a search of the exterior of the car, the drug-detection dog "alerted" to the presenceof a narcotic. The detectives then conducted a warrantless search of [*2]the vehicle, discovered approximately 13 pounds of marihuana packagedin several garbage bags and arrested defendant.
Thereafter, a single-count indictment was filed alleging that defendant committed an act constitutingcriminal possession of marihuana in the first degree. County Court (Herrick, J.) conducted asuppression hearing, but denied defendant's motion to suppress the 13 pounds of marihuana recoveredfrom the back of the car.[FN1] Upon completion of the trial, a jury found defendant guilty as charged. Defendant then moved to setaside the verdict pursuant to CPL 330.30 (1), contending, among other things, that Supreme Courterred in charging the automobile presumption (see Penal Law § 220.25 [1]). SupremeCourt denied defendant's motion and sentenced him to 3½ years in prison with 1½ years ofpostrelease supervision. Defendant now appeals from the judgment of conviction. Because we find thatthe statutory presumption of knowing possession of a narcotic by occupants of a motor vehicle is notapplicable in this case, we reverse.
Defendant contends that, based upon the plain language of Penal Law § 220.25 (1), theautomobile presumption does not apply to marihuana and, thus, Supreme Court improperly instructedthe jury as to the element of possession. Penal Law § 220.25 (1) provides, in relevant part, that"[t]he presence of a controlled substance in an automobile . . . is presumptive evidence ofknowing possession thereof by each and every person in the automobile at the time such controlledsubstance was found." However, Penal Law § 220.00 (5) expressly excludes marihuana fromthe definition of a controlled substance.[FN2] Since a plain reading of Penal Law § 220.00 (5) and § 220.25 (1) reveals that thelanguage is clear and free from any ambiguity regarding the exclusion of marihuana possession from theapplication of the automobile presumption, it would be inappropriate for us to interpret and construe it(see Matter of McCulloch v New York State Ethics Commn., 285 AD2d 236, 239 [2001];State of New York v Wal-Mart Stores, 207 AD2d 150, 152 [1995]; see alsoMcKinney's Cons Laws of NY, Book 1, Statutes § 76). Thus, we reject the People's contentionthat we should consider provisions of other statutes, including Penal Law § 220.25 (2) andPublic Health Law § 3306, Schedule I (d) in [*3]conjunctionwith the overall purpose of the Marihuana Reform Act of 1977 (see L 1977, ch360).[FN3]
Even if we were to hypothesize, as the People urge us to do, that the Legislature made an error infailing to amend Penal Law § 220.25 (1) when Penal Law § 220.00 (5) was amended in1977, we " 'cannot correct supposed errors, omissions or defects in legislation' " absent clearambiguities in the statute, which is not the case here (Meltzer v Koenigsberg, 302 NY 523,525 [1951], quoting McCluskey v Cromwell, 11 NY 593, 601-602 [1854]). Moreover, hadthe Legislature intended to include marihuana for purposes of the automobile presumption, it surelycould have addressed this issue in the more than 20 years since the subject amendment to Penal Law§ 220.00 (5) (see generally L 1977, ch 360, § 4).[FN4]
In view of the foregoing, we find that Supreme Court erred in instructing the jury as to the elementof defendant's knowing possession of marihuana. Having considered and rejected all of defendant'sother contentions, including the legal sufficiency of the evidence, we therefore remit for a new trial(see generally People v Manini, 79 NY2d 561 [1992]; People v Leader, 27 AD3d 901 [2006]; cf. People v Burns, 17 AD3d 709[2005]).
Mercure, J.P., Spain, Carpinello and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the Supreme Court for a new trial.
Footnote 1: However, County Court suppressedthe marihuana that was discovered under the front seat based upon defendant's Molineuxobjection because the People failed to address it during the suppression hearing.
Footnote 2: In 1973, the Legislature originallyenacted the definition of "controlled substance," which included, among other drugs, marihuana(compare L 1973, ch 276, § 19, with Penal Law § 220.00 [5]).Simultaneously, the Legislature amended Penal Law § 220.25 (1) by replacing "dangerous drug"with "controlled substance" in enumerating the drugs encompassed within the automobile presumption(see L 1973, ch 276, § 20; L 1973, ch 278, § 9; see also L 1973, ch276, § 19). Then, the Legislature enacted the Marihuana Reform Act of 1977, which amendedthe definition of a controlled substance set forth in Penal Law § 220.00 (5) to specifically excludemarihuana, while leaving the language of Penal Law § 220.25 (1) untouched (see L1977, ch 360, § 4).
Footnote 3: We also find unpersuasive thePeople's argument that the sole purpose of the Act was to reduce the penalties associated withpossession of marihuana, as the legislation itself indicates that it was also intended to reduce lawenforcement resources expended on prosecuting certain offenses involving marihuana possession andsales (see L 1977, ch 360, § 1).
Footnote 4: We note that the SecondDepartment and certain trial courts have also held that the statute plainly excepts marihuana from theautomobile presumption (see e.g. People vGabbidon, 40 AD3d 776, 777 [2007]; People v Gabbidon, 10 Misc 3d 728, 730 [2005]; but see People v Renaud, 7 Misc 3d260, 264 [2004]). Furthermore, although the Court of Appeals has cited Penal Law §220.25 (1) in finding substantial evidence of marihuana possession in a police disciplinary proceeding(see Matter of Boyd v Constantine, 81 NY2d 189, 196 [1993]), the issue squarely before usnow—whether the automobile presumption applies to possession of marihuana—was notraised therein.