People v. Lobianco

Legal Aid Society, Brooklyn (Russell Neufeld and Titus Mathai of counsel), for defendant. Charles J. Hynes, District Attorney, Brooklyn (Kirby F. Payne of counsel), for plaintiff.

OPINION OF THE COURT

Facts

Charles Lobianco was arrested on January 9, 2003^[*] for allegedly violating Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree. On that date, the defendant was issued an appearance ticket and released from the 66th Police Precinct. On March 6, 2003, the defendant was arraigned in Criminal Court, Part DAT, on a misdemeanor complaint alleging that at 1616 Coney Island Avenue, County of Kings, informant "Detective James Finnigan, shield no. 05789, of BSND Command . . . observed the defendant holding in his hand two hypodermic needles containing heroin residue in that informant recovered said needles from defendant's hand." The defendant was released on his own recognizance and the case was adjourned to March 24, 2003 to Part AP-4 for conversion. On May 5, 2003, the People amended the complaint, substituting Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree, with Penal Law § 220.45, criminally possessing a hypodermic instrument. Thus, the laboratory results were no longer needed for conversion. At this juncture, the court deemed the misdemeanor complaint converted into an information. The matter was adjourned to June 5, 2003 for discovery by stipulation (hereinafter DBS). On June 5, 2003, the People served and filed DBS. The People were served with defendant's motion to dismiss herein on June 19, 2003. The matter was adjourned pending decision.

Arguments

Defendant moves to dismiss the accusatory instrument had herein on several grounds. First, defense counsel argues that Penal Law § 220.45 and Public Health Law § 3381 are unconstitutionally vague in their application within the meaning of the New York Constitution and the United States Constitution. Second, defense counsel submits that there is a legal impediment to conviction and cites Public Health Law § 3381. Next, defense counsel states that the complaint is facially insufficient pursuant to CPL 170.35 (1) (c), 100.40, and 100.15. Finally, defendant seeks to reserve his right to make further motions pursuant to CPL 255.20 (3) and for such other and further relief as this court deems just and proper. The People submit that they have sufficiently pleaded the charges and that there is no legal impediment to prosecution. Specifically, the People argue that possession of a hypodermic needle is presumed illegal. The People also cite Public Health Law § 3396 for the proposition that the defendant is required to prove, by a preponderance of the evidence, that he is protected by Public Health Law § 3381.

Analysis

In the case herein, the defendant is charged with a misdemeanor complaint accusing him of violating Penal Law § 220.45, criminally possessing a hypodermic instrument. The factual portion of the accusatory instrument is based on observations by informant, Detective James Finnigan, shield No. 05789 of BSND Command, of "the defendant holding in his hand two hypodermic needles containing heroin residue in that informant recovered said needles from defendant's hand." Penal Law § 220.45 provides that "[a] person is guilty of criminally possessing a hypodermic instrument when he knowingly and unlawfully possesses or sells a hypodermic syringe or a needle." The term "unlawful" as used in article 220 of the Penal Law means in violation of article 33 of the Public Health Law. (See, Penal Law § 220.00 [2].) Public Health Law § 3381 (2) states: "[i]t shall be unlawful for any person to possess a hypodermic syringe or needle unless such possession" is: (1) authorized by the commissioner; (2) pursuant to a written prescription; or (3) made pursuant to the requirements contained in section 3381 (6). (Emphasis added.) Public Health Law § 3381 (6) (c) and (d) promulgate many requirements that must be fulfilled by a pharmacy in order to sell or furnish a hypodermic instrument to a person, inter alia, the pharmacy must be licensed, safety inserts for the instruments must be included in the sale, the location of needles within the pharmacy, and advertisement regulations. Additionally, section 3381 (6) (a) states that a person 18 years or older may obtain and possess a hypodermic instrument pursuant to sale and furnishing requirements delineated in section 3381 (1) (c). Together, Public Health Law § 3381 (1) (c), (2) and (6) state that sales, furnishing and possession of hypodermic instruments by licensed pharmacies are lawful provided that (1) the person is 18 years or older; (2) possession is limited to a quantity of 10 or less; and (3) possession is made in accordance to requirements delineated in section 3381 (6) as to the pharmacy's licensing, safety inserts, location within store and advertisement. In the motion, defense counsel states upon information and belief that the defendant is 45 years old and possessed only two hypodermic instruments, i.e., less than 10 hypodermic instruments, purchased from a licensed pharmacy which complied with all the requirements delineated in section 3381 (6). In the reply memorandum to the People's opposition of defendant's motion to dismiss, defense counsel stated that the defendant legally purchased the hypodermic instruments at Duane Reade, located at 1401-07 Kings Highway, East 14th Street, County of Kings, State of New York. Defendant makes several arguments for dismissal relying on the aforementioned factual assertions. Here, there is no allegation that the defendant possessed the hypodermic needles pursuant to an authorization by the commissioner, nor that his possession resulted from a written prescription. Therefore, the court must determine whether possession was lawful pursuant to Public Health Law § 3381 (6).

1. Penal Law § 220.45, as Defined in Public Health Law § 3381, is Not Unconstitutionally Vague

Defendant argues that Penal Law § 220.45 is unconstitutionally vague as applied herein because it relies on Public Health Law § 3381 to define "unlawful." Defense counsel also argues that the statute fails to provide the kind of notice that will enable a person of ordinary intelligence a reasonable opportunity to understand when possession of a needle is lawful. The People submit that defense counsel's claim that Penal Law § 220.45 is unconstitutionally vague is without merit. The root of the vagueness doctrine is fairness. (See, Colten v Kentucky, 407 US 104, 110 [1972].) "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Grayned v City of Rockford, 408 US 104, 108-109 [1972].) However, requiring that laws be written with a sufficient degree of specificity does not mean that we should expect mathematical certainty. (Grayned, supra at 110.) Analyzing Penal Law § 220.45, as defined within Public Health Law § 3381, in light of the vagueness doctrine, the court finds that the statute is not unconstitutionally vague. The statute does not delegate matters to policemen, judges or juries which could be interpreted differently. As such, the statute, as written, is void of the dangers of arbitrary and/or discriminatory application to persons. Additionally, the fact that Penal Law § 220.45 cross-references article 33 of the Public Health Law does not render the statute unconstitutionally vague. When read together, it is clear what type of behavior is considered unlawful and under what basis other behavior is lawful. Indeed, there are many statutes in the Penal Law that reference the Public Health Law, none of which have been held to be unconstitutionally vague on those grounds. However, when a person of ordinary intelligence enters a pharmacy such as Duane Reade to purchase a hypodermic instrument, it is impossible to tell whether such purchase would be legal or illegal under Public Health Law § 3381 (6) without doing research on the law and the pharmacy because the pharmacy has all the trappings of being legal. Therefore, to pass constitutional muster, the statute must be interpreted to exempt a defendant who purchases hypodermic instruments from a pharmacy, without regard to whether the pharmacy was in compliance with the requirements of Public Health Law § 3381 (6). Requiring the defendant to assert whether the pharmacy is in compliance with all the requirements delineated in Public Health Law § 3381 (6) would place an unreasonable burden on the defendant and render the statute unconstitutionally vague. A statute, where possible, must be read in a manner that would be constitutional. In this case, that requires that the statute be read to exempt from prosecution a person over 18 years old, that possesses less than 10 hypodermic needles purchased at a pharmacy without requiring the defendant to have ascertained that the pharmacy complied with Public Health Law § 3381 (6). On this basis, the court denies defendant's motion for dismissal on the basis that Penal Law § 220.45 is unconstitutionally vague.

2. Defendant Has Not Demonstrated a Legal Impediment to Prosecution

Defense counsel first argues that the defendant is entitled to dismissal because there is a legal impediment to prosecution. Specifically, defense counsel states that Public Health Law § 3381 substantially broadens the class of persons who may lawfully possess hypodermic instruments and, conversely, narrows the class of persons subject to prosecution. It is defense counsel's contention that the defendant is within the class protected under article 33 of the Public Health Law. As discussed above, Public Health Law § 3381 (6) promulgates many rules under which a pharmacy may lawfully provide a hypodermic instrument to a person, including the pharmacy's licensing, safety, location, and advertisement requirements. Defense counsel argues that the additional requirements found in Public Health Law § 3381 (6) are imposed on the pharmacies who elect to sell hypodermic instruments. Therefore, it should not be the consumer's, or, in this instance, the defendant's responsibility to ascertain a pharmacy's compliance with the statute before he purchases hypodermic needles. In the reply memorandum, defense counsel states that the defendant legally purchased the hypodermic instruments at Duane Reade, located at 1401-07 Kings Highway, East 14th Street, County of Kings, State of New York. However, a mere affirmation by defense counsel that the defendant purchased the hypodermic needles from a Duane Reade is insufficient to establish that defendant purchased the needles at a pharmacy. In People v Opris (161 Misc 2d 415 [1994]), a defendant was charged with violating Penal Law § 220.45. Defendant filed a motion to dismiss contending that there was a legal impediment to prosecution because he fell under one of the exemptions under article 33 of the Public Health Law. The court denied defendant's motion finding that the "issue . . . must be resolved at trial after a thorough and careful examination of all of the relevant evidence." (Id. at 418.) As discussed above, the statute must be read to exempt persons over 18 years old who purchase less than 10 needles at a pharmacy without proof that the pharmacy complied with Public Health Law § 3381 (6) requirements. It must be determined at trial whether the defendant purchased the needles at a pharmacy. Therefore, the court denies defendant's motion to dismiss the action on the ground that there is a legal impediment to prosecution.

3. The Accusatory Instrument is Not Facially Insufficient

Additionally, the defendant submits that the complaint must be dismissed because it is not a facially sufficient information; and, therefore, the complaint contains a nonwaivable jurisdictional defect requiring dismissal. Generally, a misdemeanor complaint is sufficient to commence a criminal prosecution. However, the defendant has a statutory is denied. However, the People still have the burden of showing at trial that the defendant did not purchase the needles at a pharmacy.

4. Public Health Law § 3396 Does Not Apply to Penal Law Actions

The People argue that mere possession is presumed unlawful. However, for their argument the People do not rely on Public Health Law § 3381 (1) (c) and (6), which defines "unlawful possession" and is incorporated into Penal Law § 220.45 by reference. Instead, the People rely on Public Health Law § 3396 (1) for their contention that the possession is presumed unlawful and that the defendant bears the burden of establishing that his possession was lawful. The People's reliance on Public Health Law § 3396 (1) is misplaced. Public Health Law § 3396 (1), violations and penalties, states: "[i]n any civil, criminal or administrative action or proceeding brought for the enforcement of any provision of this article, it shall not be necessary to negate or disprove any exception, excuse, proviso or exception contained in this article, and the burden of proof . . . shall be upon the person claiming [the defense]." In this instance, the proceeding is not being brought forth by any provision of article 33 of the Public Health Law. Indeed, the case herein arose from allegations that the defendant violated Penal Law § 220.45, which merely incorporates article 33 of the Public Health Law by reference, substantively, for the definition of the element "unlawful." The fact that article 33 also contains sections dealing with the procedural process for proceedings brought forth under any provision of the article does not change the fact that the defendant stands charged of violating the Penal Law, nor does it automatically transfer the applicability of the Public Health Law's procedural guidelines to cases prosecuted under the Penal Law. A historical analysis of the Public Health Law statutes clearly shows that the legislative intent was to limit the applicability of Public Health Law § 3396 to actions brought forth under the enforcement of the article itself. For example, Public Health Law former § 3354 (1) stated that "in any complaint, information, or indictment, and in any action or proceeding brought under the enforcement of any provision of this article, it shall not be necessary to negate or disprove any exception, excuse, proviso, or exemption contained in this article, and the burden of proof . . . shall be upon the defendant." (Emphasis added.) at the pharmacy, the defendant does not bear the burden at trial of showing that his possession comes within the exception.

5. Reservation of Rights

Defendant's request for the right to make future and further motions, as many as may be necessary, based upon information and disclosure which may result from granting the requests herein is granted pursuant to CPL 255.20 (3) (People v Frigenti, 91 Misc 2d 139 [1977]). Wherefore, it is the decision of this court that this matter does not merit dismissal. [*] The actual date of offense is unclear. The complaint states the time and place of occurrence (hereinafter TPO) is January 9, 2003. However, police paperwork provided during the discovery process denotes January 13, 2003 as the TPO.