The One Free Walk Rule

By Mark David Blum, Esq.

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. 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 5th 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 4th 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 5th 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 4th 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.

A read of the plain language of the statute says that upon an application by a defendant and provided the defendant meets all the statutory criteria, the court must grant one of the two forms of relief provided for in the statute. Either the Court must grant an ACD, or upon finding that doing so would be unnecessary, then the Court must dismiss in the interests of justice. The plain read of the law does not entitle a court to choose to not apply the statute at all.

It has been held and interpreted that directing one of the two options set forth at C.P.L. §170.56 is a “Ministerial Act.”

There is a general rule of statutory construction, which states that, "a judicial interpretation of a statute, having once been made, is binding on subsequent courts in accordance with the rule of stare decisis and the doctrine of precedents." That, “interpretation becomes as much a part of the enactment as if incorporated into the language of the act itself."

The "pervading law", "of all English speaking nations", recognizes stare decisis as a general principle of statutory construction that says once a court of competentjurisdiction and so it; authorized, declares an interpretation of a statute, it becomes "evidence of the law" until changed. McKinney's Consolidated Laws, Book 1, Statutes, §72, pg. 140-1 and cases cited therein.

Section 170.56 of the Criminal Procedure Law was enacted, upon information and belief, in 1971 or 1972 and has not been substantively amended since. In a 1975 decision, People v. Mann, 83 Misc.2d 442, 445 (Nassau County 1975), the Court there held that, "(i)t is crystal clear that the act of the Judge in granting the ... adjournment was ministerial in nature in that the court is compelled by CPL 170.56 to grant the motion of dismissal so long as the application set forth the basic representations upon which such an application can be made." (emphasis added) (copy attached). See also Marvin Waxner, N.Y. Crim. Prac., V.I, §6.1l(1), pg. 6-79 (citing Mann, concluding it is a ministerial duty of the court to apply the statute).

There are no other known decisions on this issue at any level that address the question of "ministerial duty" directly. Petitioner will defer to any other opinions found by the Court or Respondent. In dicta, in People v. Ford, 104Misc.2d 458, 459 (Kings County 1980), the Court there observed that, "it is unquestioned that under C.P.L. §170.56 a defendant who is granted an ACD is offered certain benefits not accruing under C.P.L. §170.55." (The only other relief under C.P.L. 170.56 is outright dismissal). "An ACD under C.P.L. §170.56 ... is a singular application of the law, which no other defendant receives even under CPL companion section 170.55." Id. (internal quotations and citations omitted).

For 26 and 21 years respectively, the decisions of Mann and Ford remain undisturbed and uncriticized. There are no known controlling or contrary decisions.

Consequently, in accordance with the doctrine of stare decisis, the opinions of Mann and Ford should be "incorporated into the language of the act itself." McKinney's Consolidated Laws, Book I, Statutes, §72, pg. 140-1and cases cited therein. See generally McKinney's Consolidated Laws, Book 1, Statutes, §128,pg. 265.

"The Legislature is deemed to have knowledge of the rules of construction when they enacted a statute; and, in the absence of anything to the contrary, the courts suppose that the Legislature intended its acts to be interpreted in accordance with such rules." McKinney's Consolidated Laws, Book I, Statutes, §91, pg. 174-5.

One of the rules of construction presumed known to the legislators at the time of enactment is that there are times when discretionary words are given mandatory effect. "May" means "must" or "shall" when it is necessary to carry out the legislative intent. McKinney's Consolidated Laws, Book 1, Statutes, §94, pg. 195 and cases cited therein.

This is also true when the doing of an act is for the sake of justice (People ex rel Otsego County Bank v. Board of Supervisors, 51 N.Y. 401 and other cases cited in McKinney's Consolidated Laws, Book I, Statutes, §177, pg. 347), where a substantial interest of a party is concerned (McKinney's Consolidated Laws, Book 1, Statutes, §177, pg. 349), and matters involving criminal jurisdiction (People v. Divine, 11 Abb. Prac. 90 as cited in McKinney's Consolidated Laws, Book 1, Statutes, §177, pg. 349).

It is clear that a substantial interest of a party is implicated here. If the local criminal court has discretion, the rights of the Petitioner to have a clean record and not face a criminal prosecution can be and are seriously implicated.

The Legislative History shows a specific intent to remove discretion from the Courts under circumstances as are set forth at C.P.L. §170.56. The ‘jacket’ for Senate Bill 5745, (March 2, 1971) (copy attached), contains the following statements: In the Governor's Program Bill, it states that, "[t]he bill would establish a procedure where first drug offenders charged with a marihuana offense other than felony may apply to the Court for an adjournment in contemplation of dismissal of the charges." The court is, "empowered to dismiss ... or adjourn" provided all other statutory criteria are present.

Opposed by the Superintendent of the New York State Police, his chief concern was the permanent sealing of records.

Second, a statement made by the State of New York Office of Crime Control Planning, acknowledges the law is "laudable" but "ambiguous." They questioned the need for 170.56 given the existence of C.P.L. 170.55. The Superintendent of the New York State Police also explained that the existence of C.P.L. 170.55 made C.P.L. 170.56 unnecessary.

Third, the Director of the State of New York Executive Department for Intelligence and Identification Systems, in opposing the then proposed legislation, makes specific reference to what he calls, ''the forgiveness" principle of the law. He too complained how the law is inartfully drawn.

The State of New York Office of Crime Control Planning make specific note that the consent of the People is not required. The New York State Bar Association Criminal Justice Section at the time recognized the then practice of prosecutors statewide already adjourning cases in contemplation of dismissal under C.P.L. §170.55. While the Bar Association objected to the removal of the People's consent, it claimed the genesis of the Bill came from the already in-place practice of routinely dismissing such charges. Hence, by implication, consent by the People to one of the forms of relief available at C.P.L. §170.56 is already presumed in the current law.

Arguments against enactment of C.P.L. § 170.56 by the then District Attorney of New York County point to his concerns that the law would be the exclusive remedy for applicable marijuana offenses to the exclusion of all others. Hence, even he recognizes a qualified applicant is entitled to one of 3 forms of dismissal. One is by the legislature (170.56), one is with the consent of the People (170.55), and one is by the Court (170.40). Of particular note is the District Attorney's recognition of the possibility that, "trial judges would be reluctant to grant adjournments in contemplation of dismissal in marijuana cases and that they would feel freer to do so because of this bill." Passage of the bill was recommended if the, "Governor concludes that it will encourage trial courts to grant the relief to first offender marijuana defendants." (emphasis added).

In his Memorandum in support of the Bill, its author Senator John R. Dunne justifies its passage as follows: “One of the most undesirable consequences as they are presently constituted is the stigmatizing of many young one-time offenders with lifetime criminal records. The irreparable damage that can be done to the future of basically law-abiding young persons makes an immediate change in the law imperative.”

Read together, all the foregoing reveal the following set of changes and legislative intentions. (1) C.P.L. §170.56 does not replace C.P.L. §170.55 but instead supplements already existing law. (2) C.P.L. §170.56 specifically provides the People no venue to withhold consent. (3) While there may be ambiguous language regarding "discretion", the legislative intent is clear that the application of 170.56 is specifically intended to immunize first time marijuana offenders and remove hindrances to dismissal or an ACD.

It simply is illogical to read C.P.L. §170.56 as giving discretion to the Court to deny a defendant one of the benefits thereof. Provided all statutory conditions are met, as they are here, the legislative intent is that the defendant, be absolved of all criminal stigma. This was so important that the legislature removed from consideration any opinion the District Attorney may have in opposition. There simply is no way for the local criminal court to be able to make a discretionary decision that would frustrate the expressed and stated intentions of the law.

Consider and compare People v. Ruggieri, 100 Misc.2d 585,587 (Duchess County 1979). There, and not in dicta, the Court states that C.P.L. §170.55 does not create a vested right specifically because, "it is always conditioned upon a consent of the People." (emphasis added). By implication, when by legislative decree, consent of the People is not a condition, as is the case in C.P.L. §170.56, the absence of a consent of the People requirement vests a right to the relief contained in the statute. "Rights" are not discretionary.

Finally, the New York State Bar Association Criminal Justice Section had argued to the Legislature that prosecutors statewide were already 'routinely' granting similar relief under C.P.L. §170.55. Obviously, by removing prosecutorial consent, the legislature wanted to assure the relief was granted. It would do great violence to the "forgiveness" element of the law if it were read that legislators who went out of their way to remove any prosecutorial consent, they then intended judges to still 'just say no'.

"A strict literal construction is not always adhered to, and the literal wording of a statute may be required to give way to the expressed object of the lawgivers." In fact, "the words of a statute ought to made subservient to the intent and not contrary to it." McKinney's Consolidated Laws, Book 1, Statutes, §94, pg. 194-5 and cases cited therein. See also McKinney's Consolidated Laws, Book 1, Statutes, §96, pg. 203-6 and cases cited therein ("construction is to be preferred which furthers the object, spirit and purpose of the statute").

It has already been shown the legislative intent is for the local criminal court to either dismiss or grant an ACD, and then seal Petitioner's record; Period. The intent is for the Petitioner to have "one free walk" with a lesson learned. A literal read of the word "may" hobbles that intention.

"Rules of construction make the law as well as the statutes; and lightly to depart from them without necessity, would be to incur the denunciations of Lord Hale himself, against precipitate and inconsiderate innovations in the law." McKinney's Consolidated Laws, Book 1, Statutes, §91, pg. 174.

"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of the person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616 (1886).

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