City Court of Hudson, February 26, 2019

Dominic J. Cornelius, Public Defender (Michael Howard of counsel), for defendant.

Paul Czajka, District Attorney (Joyce Crawford of counsel), for plaintiff.

This action was commenced by the filing with this court of an information alleging that the defendant violated Penal Law § 221.05, unlawful possession of marijuana, a violation. The information alleges that the defendant had in her possession, in her motor vehicle, two baggies containing an aggregate weight of 13 grams of marijuana.

A plea of not guilty was entered and thereafter defendant moved this court requesting an adjournment in contemplation of dismissal pursuant to CPL 170.56.

The defendant filed an attorney's affirmation in support of the motion, and the People filed an attorney's affirmation in opposition to the motion.

The defendant argues that this case should be adjourned in contemplation of dismissal pursuant to CPL 170.56. Specifically, the defendant argues:

a. That the facts of this case warrant an adjournment in contemplation of dismissal.

b. That the consent of the People is not required for the court to grant this relief.

c. That the defendant has not pleaded guilty to the charge and that a trial has not been commenced on the charge.

d. That no other controlled substances are alleged to be involved in this arrest.

e. That the defendant has "a clean record" in that she has no prior convictions, adjournments in contemplation of dismissal, has not been previously adjudicated a youthful offender regarding an offense involving a controlled substance, or had any dismissals.

f. That the only other offense charged against the defendant is an alleged violation of Vehicle and Traffic Law § 375 (2) (a) (3), insufficient tail lamp.

The People oppose the instant motion on the following grounds:

a. That the court's authority to grant an adjournment in contemplation of dismissal under CPL 170.56 is discretionary.

b. That the defendant justifies her request based upon claiming to have a clean criminal history and to avoid the stigma of a conviction under Penal Law § 221.05.

c. That the defendant is 53 years old. The legislature did not contemplate giving the relief under CPL 170.56 to persons of{**63 Misc 3d at 444} that age, since they should know better, as opposed to a youthful indiscretion.

d. When an adjournment in contemplation of dismissal is granted, the arrest becomes a nullity and no record of it will exist. Therefore, the People have no way of knowing if the defendant has had a prior adjournment in contemplation of dismissal under CPL 170.56.

In 1977, when the New York State Legislature enacted Penal Law § 221.05, they decriminalized possession of 25 grams or less of marijuana. The effect of enacting Penal Law § 221.05 was to make possession of small quantities of marijuana, such as the amount allegedly possessed by the defendant, an offense of the least possible severity. Bail cannot be set on a person charged with this offense, and an arrest warrant cannot be issued for a person charged with this offense. A conviction under Penal Law § 221.05 does not result in a criminal record, such defendant cannot be sentenced to any jail time, and for a first offense the maximum fine is $100 (plus state surcharge).

Even earlier, in 1971, when the New York State Legislature enacted CPL 170.56, our State expressed its desire to minimize the impact on a person facing a potential conviction to a non-felony marijuana offense. Charges up to the A misdemeanor of unlawful possession of marijuana in the fourth degree can be adjourned in contemplation of dismissal under CPL 170.56. An adjournment in contemplation of dismissal pursuant to CPL 170.56 is an adjournment by the court of up to 12 months, with conditions specified by the court. Provided the defendant does not violate any set conditions during the adjournment period, at the conclusion of the adjournment period, the court is to order the sealing of the proceeding, "the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution."^[FN1] Nowhere in the statute are there any references to the age of the defendant.

The People's argument that the defendant's age is relevant to the court's decision of whether to grant an adjournment in contemplation of dismissal pursuant to CPL 170.56 is not supported by statute or case law and therefore irrelevant and unpersuasive. There is no legal basis for the court to discriminate according to age and if the court was to embrace such legal argument, it would possibly be acting in an illegally discriminatory manner.{**63 Misc 3d at 445}

It has been described that the act of a judge in granting an adjournment in contemplation of dismissal is ministerial in nature and that the court is compelled to grant the adjournment in contemplation of dismissal as long as the application sets forth the basic representations upon which such an application can be granted.^[FN2]

Here, the People have failed to argue any justification why, based upon the facts alleged by the parties, the request for an adjournment in contemplation of dismissal should not be granted.

The court will assert its discretion and grant the motion of the defendant. This case is adjourned in contemplation of dismissal for six months in accordance with CPL 170.56 upon the condition that the defendant not be found guilty of a misdemeanor or a felony during that period.