The drafting format of the new offenses relating to “criminal sale of cannabis” departs from the drafting format formerly in use to define criminal sale of marihuana, reanimating a question of statutory interpretation that had been thought laid to rest for over 25 years.
Prior to 1995, the text of most possessory drug offenses in the Penal Law followed the format,
“A person is guilty of [offense X] when he knowingly and unlawfully possesses [amount Y] of [substance Z].”
For example, former PL 220.18[5] provided, “A person is guilty of criminal possession of a controlled substance
in the second degree when he knowingly and unlawfully possesses: . . . six hundred twenty-five milligrams of a hallucinogen.”
Similarly, prior to 1995, statutes defining criminal sale commonly followed the format,
“A person is guilty of [offense X] when he knowingly and unlawfully sells [amount Y] of [substance Z].” For example, former PL 220.41[1] provided,
“A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells … one or more preparations, compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic drug.”
In 1993, the Court of Appeals in People v Ryan (82 NY2d 497 [1993]) specifically considered the first above statute and held that, “[r]ead in context”, and applying well-established rules of statutory interpretation (PL 15.15[1], [2]), under “the plain language of the statute, rules of construction, the format of the drug possession laws and our cases”, there is “a mens rea element associated with the weight of the drug”, and a conviction for the offense accordingly requires proof that a defendant “know the weight of the material possessed” (82 NY2d 497, 501-505).
Two years later the Court of Appeals specifically considered the second above statute, and extended its holding in Ryan to criminal sales, stating, “the knowledge requirement is applicable to the convictions here for criminal sale of a controlled substance in the second degree” (People v Hill, 85 NY2d 256, 259 [1995]).
In response to these two decisions, the Legislature in 1995 purposefully redrafted the text of Penal Law articles 220 and 221 (see L.1995 c.75 effective 06/10/95), specifically “[t]o eliminate, in drug possession and sale cases where the weight of a controlled substance or marihuana is an element of the offense, a requirement that the defendant must be proven to have known the weight of the item possessed or sold” (see Sponsor’s Memorandum in Support, Statement of Purpose).
The memorandum’s summary of provisions stated that, under the newly redrafted statutes, “where commission of the offense requires the knowing and unlawful possession or sale of a specified weight of a particular controlled substance or marihuana, the bill provides that commission of the offense requires the knowing and unlawful possession or sale of the particular controlled substance or marihuana, and separately provides that the item so possessed or sold be of the specified weight.” The bill also added a new subdivision (4) to Section 15.20 of the Penal Law, expressly “to provide that knowledge by the defendant of the aggregate weight of a controlled substance or marihuana is not an element of the offense and it is not a defense that the defendant did not know the aggregate weight of the controlled substance or marihuana.” The 1995 legislation accordingly established a new drafting format:
A person is guilty of [offense X] when he knowingly and unlawfully [possesses / sells] [substance Z] and said [substance Z] weighs [amount Y] or more.
For example, PL 220.18[5] was amended to provide,
“A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses . . . a hallucinogen and said hallucinogen weighs six hundred twenty-five milligrams or more”,
and, PL 220.41[1] was amended to provide,
“A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells . . . one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of one-half
ounce or more.”
Subsequent appellate decisions noted that the new drafting formulation did indeed “eliminate the need to prove knowledge of the weight” of the substance possessed, thus effectively legislatively overruling People v Ryan (see, e.g., People v Warren, 232 AD2d 589, 589-590 [2d Dept 1996]; People v Wilson, 245 AD2d 402 [2d Dept 1997]).
Now comes Chapter 92 of the laws of 2021.
The new offenses in PL Article 222 defining criminal possession of cannabis follow the “modern” revised drafting format already present in PL Article 221 defining criminal possession of marihuana. Thus, for example, new PL 222.30[1] provides,
“A person is guilty of criminal possession of cannabis in the third degree when he or she knowingly and unlawfully possesses . . . cannabis and such cannabis weighs more than sixteen ounces”
(emphasis added). It seems evident therefore that the Legislature by this construction intended to continue
the existing policy that knowledge of the amount of cannabis possessed need not be proven.
But, in drafting new offenses defining criminal sale of cannabis, the Legislature has departed from the existing format of statutes defining criminal sale of marihuana and of controlled substances, and has returned to the older drafting format, for example as seen here:
“A person is guilty of criminal sale of cannabis in the third degree when . . . he or she knowingly and unlawfully sells more than three ounces of cannabis . . . .”
(PL 222.50[1]).
This is the exact grammatical format that the Court of Appeals considered, and ruled upon, 25 years ago in People v Hill (supra), and deference to that precedent suggests that no conviction for this offense may be had without proof that the defendant knew that the quantity of cannabis sold exceeded three ounces.
The same grammatical format has been employed in PL 222.55 and 222.60, with PL 222.65 (Aggravated criminal sale of cannabis) similarly requiring that a defendant “knowingly and unlawfully sells cannabis or concentrated cannabis weighing one hundred pounds or more.”
There is little to indicate whether the Legislature considered the issue, and if so whether it intended to re-incorporate a mens rea requirement into the statutes defining criminal sale of cannabis. Notably, while numerous conforming changes were made in the Penal Law substituting the term “cannabis” for “marihuana” (see PL 179.00, 179.05, 179.10, 179.11, 179.15, 220.78), no such amendment was made to PL 15.20(4), which by its terms continues to apply only to a “a controlled substance or marihuana”, not to “cannabis.”
Whether the two terms are equivalent remains to be seen.1
Until there is clarification on the issue, NYSentencing will adopt the interpretation that knowledge of the weight of cannabis is an element of offenses defining its criminal sale.
1 While the 2021 act itself is entitled the “marihuana regulation and taxation act” (L.2021 c.92 § 1), and legislative findings set forth in its newly established Cannabis Law (L.2021 c.92 §2) state that “[t]he intent of this act is to regulate, control, and tax marihuana, heretofore known as cannabis” (Cannabis Law § 2).