The defendant has been indicted for one count of Criminal Possession of Marihuana in the Second Degree, a class D felony

(PL §221.25).

By omnibus motion, the defendant Gauntlett Gabbidon seeks various forms of relief, including dismissal of the indictment.

BACKGROUND

Although neither party mentioned it in the motion papers submitted with respect to this Indictment, the defendant had been indicted previously with respect to the same charge.

By decision dated November 1, 2005, that indictment was dismissed on the ground that the prosecutor had charged the grand jury that the statutory presumption contained in Penal Law §220.25[1] was applicable.

I dismissed the indictment on the ground that the statutory presumption was not applicable to marihuana cases.

I dismissed that indictment on the further ground that, even

if it was applicable, the prosecutor failed to charge the grand jury that the presumption was only a permissive one.

I granted leave to the prosecutor to resubmit the matter to

a grand jury. Of course, the People also had the right to appeal and indicated initially that they intended to do that.

Instead, they chose to resubmit the case to another grand jury. Again, the prosecutor charged the presumption contained in Penal Law §220.25[1], but this time charged that it was permissive.

This strikes me as a very curious approach to the issue since it had to be obvious to the prosecutor that I would dismiss this indictment.

I gather from a post-arraignment conference that the prosecutor believes that it would be a better tactical approach to appeal the issue of the applicability of the statutory presumption to marihuana cases when charged as a permissive presumption.

DISCUSSION

My opinion has not changed, and, accordingly, I repeat here what essentially was the holding of the prior dismissal decision and order.

INSPECTION - DISMISSAL

The motion to inspect the grand jury minutes is granted to the extent that the Court has reviewed the minutes. (CPL 210.30[2][3].

Specifically with respect to the motion to dismiss, the defendant argues that it was improper for the prosecutor to charge the grand jury the statutory presumption contained in Penal Law §220.25[1] which provides:

1.The 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; except that such presumption does

not apply (a) to a duly licensed operator of an automobile

who is at the time operating it for hire in the lawful and

proper pursuit of his trade, or (b) to any person in the

automobile if one of them, having obtained the controlled

substance and not being under duress, is authorized to [*2]

possess it and such controlled substance is in the same

container as when he received possession thereof, or (c)

when the controlled substance is concealed upon the person

of one of the occupants.

Defendant argues that, since marihuana is not a controlled substance as defined in Penal Law §220.00[5], the presumption doesn't apply.

Defendant argues further that, since the Legislature included marihuana in Subdivision 2 of Penal Law §220.25 and did not specifically include it in Subdivision 1, it was the Legislature's intent that marihuana not be included in the automobile presumption.

The People argue that the enactment of Article 220 of the Penal Law in which the definition of controlled substance was re-written to exclude marihuana was intended to change the penalties only and not the evidentiary rule of the automobile presumption.

In support of this position, the People cite and quote extensively from People v. Renaud, 7 Misc 3d 260 (Niagara Co. Ct. 2004).

Although I certainly recognize that Renaud is a very well written opinion, I am not bound by it and do not agree with it.

The essence of the Renaud decision is that marihuana is a controlled substance listed in Public Health Law §3306, Schedule

I, (d) (13) and that, therefore, the presumption should apply.

Notwithstanding that marihuana was specifically excluded from the definition of "controlled substance" in Penal Law §220.00[5]

the Renaud Court considered that, since the Legislature did not specifically include or exclude marihuana in the definition of controlled substance in the presumption statute (PL §220.25[1]),

the fact that marihuana is included in Public Health Law §3306

means that it can be included as a controlled substance in Penal

Law §220.25[1].

The Renaud opinion is essentially suggesting that the definition of controlled substance as found in PL §220.00[5] be disregarded because it was not re-defined in PL §220.25 and we should look to the definition of a controlled substance or Public Health Law §3306.

It is true that the literal language of a statute is not always controlling in the interpretation thereof, but this is a principle to be adopted with extreme caution and only where the plain intent and purpose of a statute would otherwise be defeated. (Bright Homes, Inc. V. Wright, 8 NY2d 157, 161).

There is no such clear cut case here. Simply put, there is

no reason to understand that the Legislature intended to includemarihuana in the Article 220 controlled substance presumption statute after having specifically excluded it from the Article [*3]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. Finnegan, 85 NY2d 53, 58)

Accordingly, I find that the statutory presumption of PL §220.25 does not apply to marihuana.

Therefore, the indictment is dismissed.

The People are hereby given leave to resubmit this matter to a grand jury.

ADDITIONAL COMMENTS

As of this date, the only reported decisions with respect to this issue are People v. Renaud, 7 Misc 3d 260 and the original Gabbidon decision reported at 10 Misc 3d 728.

It will be the prerogative of an appellate court to resolve

the issue.

DEFENDANT'S STATUS

The defendant is presently in the custody of the Department of Correctional Services with respect to a violation of parole.

On April 6, 2006, bail had been set in the amount of $5,000 cash or $10,000 bond.

As a result of this decision, instead of that bail, the defendant is hereby released on his own recognizance.

The Clerk of the Court is directed to notify the appropriate person at the correctional facility at which defendant is incarcerated that the prior commitment order is vacated and the defendant is released on his own recognizance.

Dated: Poughkeepsie, New York

June 7, 2006

____________________________

COUNTY COURT JUDGE