Defendant was pulled over on the highway and was found with more than a dozen bags of marihuana in his vehicle.
A privately owned vehicle constitutes a public place when it is driving in a public location.
Defendant, while driving his vehicle, committed a traffic infraction, and the officer pulled over Defendant, detected a strong odor of marihuana, and saw Defendant holding a Ziplock bag of marihuana in his hand. Subsequently, the officer recovered more than a dozen bags of marihuana.Â Defendant was charged with one count of criminal possession of marihuana in the fifth degree, two counts of unlawful possession of marihuana, and other offenses. Defendant pled guilty to the first count of criminal possession of marihuana in the fifth degree and appealed his conviction alleging he was not in a public location when he was found with possession of marihuana.
(1) Whether the Defendant was in a public place when he found pulled over in his privately owned vehicle. (2) If Defendant was in a public place, whether the marihuana was open to the public view when it was found on Defendant.
(1) Yes, Defendant was in a public place when he was pulled over by the police officer in his privately owned vehicle. (2) Yes, the marihuana was open to public view when it was found on Defendant’s hand.
The majority’s conclusion is contrary to the plain meaning of the statute because Defendant’s nonviolent private conduct was not conduct that the Legislature intended to criminalize. A public place is further defined in the statute to be â€œa place to which the public of a substantial group of persons has access.â€ Penal Law Â§ 240.00(1). If the Legislature wanted to include motor vehicles in the statute, it could have, and the absence of the inclusions indicates that the Legislature did not intend to criminalize this behavior. Further, because Defendant was not in a public place, there is no reason to discuss whether the marihuana was open to public view.
(1) Under the New York Penal Law Â§ 221.10, â€œ[a] person guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses . . . . marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view.â€ Under Â§ 240.00(1), a â€œpublic placeâ€ in terms of fixed physical locations such as, â€œhighways, schools, parks and the like- declaring these spaces to be public no matter whether a person is standing still or moving through them and regardless of particulars means of locomotion in use, if any. Here, the court noted that simply because Defendant was in his automobile does not change the fact that he was on the highway, a public place, when he was in possession of marihuana. Nevertheless, Defendant contends that the legislature included certain locations to be public, highways, schools, and parks, and the exclusion of a privately owned vehicle illustrates the Legislature did not intend to criminalize the possession of marihuana in that setting. The court rejected this argument on the grounds that it would be illogical for the Legislature to intend to criminalize someone walking or riding their bike on the street differently rather than someone siting in their car with the same amount of marihuana. (2) The Appellant further contends, even if he was found in a public place, the marihuana was not in a public view. The court rejected this argument because it is not necessary that members of the public view the marihuana, but rather, that it is viewable. Here, the officer said he saw it in Defendant’s hand, which is open to public view.