Thursday, February 02, 2006

Marijuana defense - dismissal under NY law - CPL 170.56

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Got part of another case resolved tonight. Client was charged with UPM (unlawful possession of marijuana). Criminal Procedure Law section 170.56 provides for dismissal or ACOD (adjourned in contemplation of dismissal) for UPM and the two misdemeanor marijuana charges, if it's a first-time marijuana offense. Defendant has to move for it, and the DA's consent is not required.

When I first appeared on this case, the ADA wanted my client to do 20 hours of community service. Sometimes DAs make up their own laws. This is not the ADA's fault. We have a new DA in Albany County, and this is part of his agenda. It's quite disturbing because he ran on a drug policy reform platform, and now he is giving the worst deals on minor marijuana offenses. No other county DA in the area seeks community service on a UPM.

So when that happened, I made a "letter motion" (I sent a letter and said "Judge, I move for ...") for dismissal under 170.56. I appeared in Court tonight and the ADA still insisted on community service.

We approached and discussed with the judge. In this case it helped that my client already volunteers extensively doing something very nice and noble. The ADA initially told the judge that he did not have the authority without her consent. I disagreed. We took a break while she looked it up. We went back in front of the judge and she admitted I was right. Yes, that does something for the male ego. :-)

So the judge granted my motion, and because of NY law regarding UPM and this dismissal, it's as if it never happened. My client was never arrested, under New York law.

I should mention that I've never had a problem with this ADA before, and we had done deals on UPMs before the new DA, and there was no problem then. While I am often critical of prosecutors, I do respect this particular ADA even if I disagreed with her on this case.
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