Neighborhood Defender Service, New York City (
Vincent Mathews of counsel), for defendant.
Robert M. Morgenthau, District Attorney of New York County, New York City (
Stacey Marques of counsel), for plaintiff.
OPINION OF THE COURT
GERALD HARRIS, J. The defendant is charged with criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [1]). He moves to dismiss the accusatory instrument as facially insufficient. Defendant also moves for a bill of particulars, discovery and inspection. He further moves to suppress statement evidence and to suppress physical evidence as the fruit of an illegal arrest. Finally, defendant moves to preclude unnoticed identification evidence and the introduction of prior criminal history and/or bad acts. The motions are decided as follows:
Facial Sufficiency
The complaint charges defendant with one count of criminally using drug paraphernalia in the second degree. The factual allegations in the complaint recite that the defendant was observed selling a pipe to a customer for $1 and that 71 "empty crack pipes" were recovered from a bag behind the counter at the deli in which defendant was working. Defendant moves to dismiss the complaint as facially insufficient, arguing that the possession and sale of pipes is not within the statutory proscription. In response, the People concede that the facts alleged do not fall within the ambit of subdivision (1) of Penal Law § 220.50, which deals specifically with dilutants and other chemical compounds. The People argue, however, that possession of the pipes (which the People characterize as "crack pipes") is covered by subdivision (2) of Penal Law § 220.50 and, at the argument on the motion, orally moved to amend the complaint to charge Penal Law § 220.50 (2). The court deferred ruling on the request to amend pending a review of the motion to dismiss. As discussed below, the court finds that the possession or sale of pipes, even pipes designed for the smoking of crack, does not violate any one of the three subdivisions of Penal Law § 220.50 and, accordingly, the proposed amendment would be ineffective and leave to so amend is denied. Penal Law § 220.50 (2) makes it unlawful to knowingly possess or sell:
"Gelatin capsules, glassine envelopes, vials, capsules or any other
material[s] suitable for the packaging of individual quantities of narcotic drugs or stimulants
under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use,
the same for the
purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant" (emphasis added).
that statute of the use which is criminalized (manufacturing, packaging or dispensing, not drug ingestion or consumption), and the obvious legislative preference to treat items such as crack pipes civilly, the complaint must be dismissed. The other branches of defendant's motion are rendered moot.