Mark David Blum, Esq.
Mark David Blum & Associates
Fayetteville New York

    It never ceases to amaze me whenever I walk into Court representing a client charged with a less-than-felony-level marijuana crime, how the Judge will look at me cross-eyed when I insist that he dismiss the charges. Judges, prosecutors and most defense lawyers think I am crazy when not only do I request the dismissal but declare that the Court MUST dismiss the charge under New York’s ‘one free walk’ rule.

    In 1971, the New York Legislature put into place §170.56 of the Criminal Procedure Law. Specifically, that law says that when the only charge pending against a defendant is a below-felony-level marijuana charge, the Court must either dismiss the charge outright or grant the defendant an unconditional discharge. Subsequent legal decisions have declared the dismissal to be ministerial, mandatory, and non discretionary. (People v. Mann, 83 Misc.2d 442, 445 ... "it is crystal clear that the act of the Judge ... is ministerial in nature").

    Amazingly, today, 30 years later, this section of the law is a total mystery to most courts, lawyers and prosecutors that I have encountered. More amazing is that despite the total lack of discretion involved; prosecutors and judges willfully sometimes refuse to honor its mandate. Right now in Chittenango Village Court, before the Hon. John Button, a request by the defense to dismiss a misdemeanor marijuana charge is pending and not only is the Court refusing to grant the motion, but the People are vehemently arguing against doing so; despite the mandatory nature of the law. I have seen it happen many times before where the Court, defense lawyers and prosecutors are completely surprised at existence of this particular section of law. This makes me wonder how many hundreds if not thousands of people have plead guilty or been convicted of non-felony level marijuana offenses and have paid fines, done community service, been on probation, or jailed when the law required that the charge be dismissed. I wonder further how many lives have been ruined by having a drug conviction in their criminal history record.

    The law says, in pertinent part. ‘... where the sole remaining count ... charges a violation of sections ...221.05, 221.10, 221.15. 221.35, or 221.40 ... of the penal law and before the entry of a plea of guilty thereto or commencement of a trial thereof the court upon motion of a defendant, may order that all proceedings be suspended and the action adjourned in contemplation of dismissal. or upon a finding that adjournment would not be necessary or appropriate ..., may dismiss in furtherance of justice the accusatory instrument...." This section specifically provides that the consent of the prosecutors is NOT required.

    Section 221.05 of the Penal Law is a violation level crime charging simple possession of marijuana in any quantity. Section 221.10 is a misdemeanor level offense charging criminal possession of marijuana in the 5^th degree where a person possesses any quantity of marijuana in a public place and the drug is burning and open to public view, or a person has possession of more than 25 grams of marijuana. Next, at section 221.15, also a misdemeanor level offense, criminal possession of marijuana in the 4^th degree charges a person with possession of more than two ounces of the drug. Section 221.35 is the misdemeanor sale charge, criminal sale of marijuana in the 5^th degree, where a person sells marijuana of an aggregate weight of less than 2 grams or one ‘cigarette’. Finally, Section 221.40, criminal sale of marijuana in the 4^th degree, is a misdemeanor charge of sale of more than 25 grams. All of these sections invoke Section 170.56.

    There are limitations to the rule. First, the charge must be the only charge before the Court. If there are other charges, the best advice is to resolve them separately so that the only count still pending would be the marijuana charge. Secondly, if the defendant has been previously been granted the one free walk, he would not be eligible a second time. Third, the walk is not available if the defendant has a prior drug offense conviction. Fourth, if the defendant has been previously convicted of any crime, the charge may not be dismissed absent consent of the District Attorney. Finally, if the defendant has been adjudicated a youthful offender on drug related charges and the District Attorney does not consent, the charge may not be dismissed. If the Court chooses to adjourn the case instead of granting an outright dismissal, the Court can hold the defendant on the adjournment to perform certain tasks such as counseling or public or private supervision for a period of up to 12 months. Once dismissed or the clock runs out on the adjournment, the defendant’s conviction is declared a nullity and the he is returned to the legal status he occupied prior to his having been charged.

    Some things not mentioned in the law that are quite interesting. For example, there is no minimum age requirement or location exception. The above mentioned matter pending in Chittenango Court, the one so vehemently opposed by Donald Cerio, Madison County District Attorney, involves a high school freshman alleged to have been caught smoking pot in the locker room. Since lawmakers included the ‘public places’ law (Section 221.15) and included the youthful offender exception, they have made clear that public policy includes children and schools.

    The Madison County District Attorney is quoted in papers as saying, "it is imperative that the Court take into consideration public policy, the recognized zero drug tolerance of the school district, and the sign that such a dismissal or adjournment would send to the Village, and the school community." In their efforts to compel the defendant to plead as charged or face trial, the prosecutors leave it to the Court to put the defendant on probation -- thus wasting taxpayer money. Prosecutors also claim that following the legislative mandate would, "only cause disrespect for the school’s zero tolerance policy." Finally, the D.A. has argued in opposing the mandatory dismissal that doing so, "would not only be offensive to the zero drug tolerance policy but would make a mockery of the criminal justice system."

    What is a mockery of the criminal justice system is the lack of education of judges, lawyers and the public as to legal rights. What mocks public policy is the opposition raised by prosecutors encouraging Courts to dishonor ministerial duties. What offends me most is that as I sit here drafting this writing, many more people will plead guilty or be convicted for the above offenses, find their lives ruined, spend money on defense and court-mandated counseling or treatment, and forever carry the scarlet letter of having a drug conviction. So adamant are today’s drug warriors to further their cause that even the law does not rein them in. Frankly, it sickens me to see the money wasted, the lives lost, and the continuing harm caused to society.

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Last modified: September 15, 2001