[*1]
People v Harper
2007 NY Slip Op 50771(U) [15 Misc 3d 1119(A)]
Decided on April 16, 2007
Supreme Court, Kings County
Holdman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through April 18, 2007; it will not be published in the printed Official Reports.


Decided on April 16, 2007
Supreme Court, Kings County


The People of the State of New York,

against

Sean Harper, Defendant.




3272/2006



Appearances of Counsel:

HON. CHARLES J. HYNES

District Attorney of Kings County

By: MARC J. SHANKER, Esq.

Assistant District Attorney

Of Counsel

GREGORY WATTS, ESQ.

Brooklyn, New York

Attorney for Defendant



Robert Kenneth Holdman, J.

The defendant is charged with Criminal Possession of a Marihuana in the Third Degree (PL 221.20) and related charges, while allegedly acting in concert with an apprehended other. On April 12, 2007, the Court directed the People to file a bill of particulars (CPL 200.95) in order that the defendant and Court[FN1] would know, inter alia, under which theory or theories of possession the People intend to prove their case. It is the Court's duty, in ensuring a fair trial to the defendant, that the defendant and Court are aware of the People's theory of possession.

The People affirm that the Grand Jury was instructed as to both constructive possession (PL 10.08) and the automobile presumption[FN2] (PL 220.25 [1]). Although that branch of the defendant's omnibus motion to inspect the Grand Jury minutes (CPL 210.20, 210.30) was reviewed by another justice of this Court, this Court is obligated to ensure that only legally proper evidence is admitted at trial. CPL 60.10. [*2]

Neither the Court of Appeals, nor any of the four departments of the Appellate Division, have decided whether the statutory automobile presumption applies to marihuana. The People rely upon People v. Renaud, 7 Misc 3d 260 (County Ct, Niagara County 2004), in which the Court held that the Legislature intended for the automobile presumption to apply to marihuana since Public Health Law § 3306 includes marihuana in its definition of a controlled substance.

This Court, however, concurs with every other nisi prius court that had to answer the question presented. Every court, other than Renaud, has answered this question in the negative. See, People Gabbidon, 10 Misc 3d 728 (County Ct, Dutchess County 2005); People v. Bruno[FN3], 13 Misc 3d 1234(A), 2006 NY Slip Op 52121(U) (County Ct, Franklin County 2006).

In this Court's analysis, had the Legislature intended for the automobile presumption to apply to marihuana possession, it would have expressly stated the same. While the Renaud court makes a reasoned argument, it is belied by the stark fact that the automobile presumption resides under Article 220 of the Penal Law and not Article 221, nor under an article of general applicability such as Article 10 of the Penal Law.

More compelling, however, is the fact that the Legislature, in amending the entire section of PL 220.25 in 1971, including causing the subdivision thereof, expressly included marihuana within subdivision two (room presumption), yet omitted any reference to marihuana within subdivision one (automobile presumption).

"We have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended." People v. Finnegan, 85 NY2d 53, 58 (1995) [internal citations omitted].

Accordingly, the People are precluded from proceeding at trial upon a theory that the defendant's - or codefendant's - alleged possession was predicated upon the statutory automobile presumption.

SO ORDERED.

___________________________________

HON. ROBERT K. HOLDMAN, J.S.C.

Judge of the Court of Claims

Footnotes


Footnote 1: Due to the fact that this Court was only assigned this matter on April 12, 2007 for trial, the Court expressly informed both parties that it has little familiarity with the facts and history of the case. This Court did not have the benefit of having reviewed the Grand Jury minutes. As open file discovery was conducted in this case, neither a bill of particulars nor other written motions were previously filed.

Footnote 2: While the Assistant District Attorney stated to the Court and counsel in passing that the automobile presumption was hypothetically applicable under the facts of this case, the only affirmative theory of possession set forth by the People for trial during the pretrial conference was constructive possession, not the automobile presumption. Thus, it was imperative for the People to expressly inform the Court and the defendant in a bill of particulars, which theory or theories of possession they intend to use at trial.

Footnote 3: Citing, at footnote 2, two unreported cases in two different counties as holding that the automobile presumption does not apply to marihuana.