[*1]
People v Storm-Eggnick
2009 NY Slip Op 52175(U) [25 Misc 3d 1218(A)]
Decided on October 21, 2009
Albany City Ct
Kretser, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2009
Albany City Ct


People of the State of New York

against

Abigail Storm-Eggnick, Defendant.




09-195639



P. David Soares, Esq.

Albany County District Attorney

Albany City Court - Criminal Part

Morton Avenue at Broad Street

Albany, New York 12202

Matthew C. Peluso, Esq.

Assistant District Attorney

Abigail Storm-Eggnick

Defendant pro se

Rachel L. Kretser, J.



The defendant, Abigail Storm-Eggnick, is charged with two counts of unlawful possession of marihuana, a violation, in violation of Penal Law §221.05. Defendant moves, pro se, to dismiss the charges against her. The People have responded through the affirmation in opposition of Matthew C. Peluso, Esq., filed August 27, 2009. The matter now comes before the Court for a decision.

Motion to Dismiss for Facial Insufficiency


The defendant's motion for an order, pursuant to CPL §§ 170.30(1)(a) and 170.35(1)(a) dismissing the information which charges the defendant with unlawful possession of marihuana [Penal Law §221.05], on grounds that the information is facially insufficient and defective, is hereby denied.

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL §100.15, (2) sets forth allegations which "provide reasonable cause to believe the defendant committed the offense charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offense charged and the defendant's commission thereof." [*2]CPL §100.40(1); People v. Alejandro, 70 NYS2d 927 (1987). This third requirement is also known as the "prima facie case" requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect.

Penal Law §221.05 states in pertinent part that "[a] person is guilty of unlawful possession of marihuana when [s]he knowingly and unlawfully possesses marihuana."

The Court notes that "the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677 (1999). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354 (2000). Upon review of the information herein, this Court finds that it is sufficient on its face, pursuant to CPL §§100.15, 100.40. Accordingly, the defendant's motion to dismiss for facial insufficiency is denied.

Motion to Dismiss on Constitutional Grounds


The defendant moves to dismiss the charge arguing that the statute in question is unconstitutional on free exercise of religion, equal protection, vagueness, and due process grounds.[FN1] The Court's constitutional analysis must begin with the recognition that all statutes enjoy an exceedingly strong presumption of constitutionality. Rochester Gas and Electric v. Public Service Commission, 71 NY2d 313 (1988). While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt, and only as a last resort should courts strike down legislation on the ground of unconstitutionality. Wiggins v. Town of Somers, 4 NY2d 215, 219 (1958).

In People v. Shepard, 50 NY2d 640 (1980), the defendant was charged with possession of nine marihuana plants in his home. He argued that marihuana is a "harmless substance and, therefore, the State of New York had no legitimate interest in prohibiting its private use or possession." Id. at 643. Notably, the defendant argued that marihuana posed "no significant harm nor health danger to the user" and that "use of marihuana was less harmful than many other drugs and commonly used substances." Id. Citing a "disagreement regarding the effects of marihuana[,]" the court explained that the marihuana prohibition "represents the current and considered judgment of an elected Legislature acting on behalf of the people of this State." Id. at 645. The court explained that even if it disagreed with the legislature about the safety of marihuana, it "lack[ed] the right to substitute [its] own sense of what is a dangerous substance for the considered judgment of the legislature." Id. at 645-46.

Similarly, while the defendant herein has raised many cogent arguments in her voluminous briefs, this Court declines the invitation to overstep it's constitutional authority . The activity at issue in this case historically has been within the realm of the legislative branch and the precedential support for that legal truism makes it impossible for the Court to find in defendant's favor, even if it were inclined to do so. Any medical, economic, social or other benefits asserted by the defendant are properly left to be weighed by the legislature. Upon review of the information herein, this Court [*3]finds that the statute comports with constitutional requirements. Accordingly, the defendant's motion to dismiss on constitutional grounds is denied.

I. FREE EXERCISE OF RELIGION


Defendant argues that the statute violates her First Amendment right to the Free Exercise of Religion. Under First Amendment jurisprudence "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " Catholic Charities of Diocese of Albany v. Serio, 7 NY3d 510, 521-22 (2006) (citing Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990)). A law is neutral if it does not have the purpose of targeting religious conduct. Id. at 522. The Court finds that the marihuana prohibition does not purposefully target religious activity. Therefore, the defendant's Free Exercise claim must fail.

Defendant also argues that the statute violates her Free Exercise rights under the New York State Constitution. In New York, "when the State imposes an incidental burden on the right to free exercise of religion' we must consider the interest advanced by the legislation that imposes the burden, and . . . [t]he respective interests must be balanced to determine whether the incidental burdening is justified' ". Id. at 525 (internal citations omitted). In Serio, the court determined that in order to overcome a neutral statute of general applicability, the party challenging the statute must show that it is unreasonable. Id. at 526. Even assuming that the defendant has a bona fide religious interest in the use of marijuana, the Court finds that she has failed to meet this burden. If the legislature determines that the religious exemption proffered by the defendant would undermine the regulation, and render impotent the legislature's ability to pursue its substantial interest in the public health and welfare, that determination is "entitled to deference." Id. at 527. Therefore, the Court finds that, on balance, the interests do not render the statute an unreasonable interference with the defendant's religious exercise.

II. EQUAL PROTECTION


Defendant argues that the statute violates the Equal Protection Clause because it treats marihuana users differently than various other classes of people. However, the Equal Protection Clause does not prevent the legislature from enacting a statute which treats different classes of people in different ways. Matter of Malpica-Orsini, 36 NY2d 568 (1975); Maresca v. Cuomo, 64 NY2d 242 (1984). A legislative enactment will pass constitutional muster if the governmental classification is based upon some conceivable and legitimate State interest. Maresca, supra at 250.

Defendant argues that strict scrutiny is the proper test in this case. Strict scrutiny of a legislative classification is reserved, however, for a situation where the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). The defendant repeatedly asserts that her rights to possess and use marihuana are fundamental. However, applying those principles to the state marihuana prohibition, the court in People v. Moore, 167 Misc 2d 994 (NY Crim. Ct. 1996), held that "there is no fundamental constitutional right to possess . . . marijuana." (internal citations omitted). Further, defendant has not argued that marihuana smokers are a suspect class which would require a strict scrutiny analysis of the statute.[FN2] In any event, the [*4]Court finds that no such suspect class is implicated in this case. Therefore the Equal Protection Doctrine requires only that a legitimate government objective be advanced by the legislation. Conn. Dep't of Public Safety v. Doe, 538 U.S. 1 (2003). The regulation of substances which the legislature finds dangerous to the public health and welfare is one such interest. Prohibiting the possession of such dangerous substances is rationally related to that interest; the state's prohibition is, therefore, consistent with equal protection. The Court of Appeals held as much in Shepard. 50 NY2d at 640 (1980).

III. VAGUENESS


Defendant next argues that the statute is unconstitutionally vague and violates due process. In order to survive a challenge for vagueness, a statute (1) must provide sufficient notice of what conduct is prohibited and (2) must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement. People v. Bright, 71 NY2d 376 (1988). The language of the statute must be sufficiently unambiguous so that persons of ordinary intelligence are not forced to guess at the meaning of the statutory terms. Foss v. City of Rochester, 65 NY2d 247 (1985). Both potential offenders and the police must have a clear understanding of what conduct is prohibited. People v. Stuart, 100 NY2d 412 (2003). The Court finds that the restriction prohibiting the possession of marihuana is specific and provides clear notice as to what constitutes a violation of the statute. Accordingly, the Court finds that the statute is not unconstitutionally vague.

IV. DUE PROCESS


Defendant argues that the statute violates her right to privacy under the Due Process Clause of the Fourteenth Amendment because a person's private use and possession of marihuana cannot be legitimately regulated by the state.[FN3] It is important to note, however, that the marihuana possession at issue in this case does not implicate any heightened expectation of privacy which might be associated with use or possession in the home. Here, the defendant twice carried a marihuana plant into the capital building.

The right to privacy under the Fourth and Fourteenth Amendments "turn[s] upon the quality of the space inhabited or traversed, i. e., whether it is public or private space. An individual has been held to have a significantly reduced expectation of privacy when passing along a public way." People v. Bauer, 140 AD2d 450, 451 (2d Dept 1988) (internal citations omitted). Here, "[h]aving made [herself] readily available for public viewing," the defendant could not have any reasonable expectation that her activities in a public building would not be scrutinized. "Where police surveillance is confined to activities openly conducted in a public place there is no Fourth Amendment intrusion." Id at 451.

Other Motions


[*5]All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court. The matter is adjourned to November 2, 2009 at 2:00 p.m. for pre-trial conference.

ENTER.SO ORDERED.

This 21st day of October, 2009___________________________________

Albany, New YorkRachel L. Kretser

Albany City Court Judge

Footnotes


Footnote 1: The defendant's additional constitutional arguments (that the marihuana prohibition is fraudulent, that it restricts her fundamental economic freedom) have been considered and are found to be without merit. There is no competent evidence that the statute is fraudulent. Further, the freedom to contract is not a fundamental right.

Footnote 2: A suspect class has been defined by the Supreme Court as a group of people "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Massachusetts Bd. of Retirement, supra at 313, citing San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1 (1973).

Footnote 3: The defendant's reliance on Ravin v. State is misplaced. In that case, the Alaska Supreme Court made clear (and subsequent state decisions have emphasized as well) that its holding was based on its interpretation of its own state's constitution, which affords its citizens a heightened right to privacy in the home.