(Maurice van der Velden)

A Manhattan judge has tossed out a drug possession charge for a man accused of holding a marijuana cigarette in public, finding that the complaint against him did not adequately describe the public place where he allegedly committed the offense.

According to Manhattan Criminal Court Judge Heidi Cesare’s decision in People v. Velez, 2015CN008005, New York City Police Officer Robert McNicholl allegedly spotted Daniel Velez holding a marijuana cigarette in a public place and in public view at West 44th Street and Tenth Avenue and saw Velez throw the cigarette to the ground.

McNicholl and another officer found a total of seven bags of marijuana in Velez’s possession. Velez was charged with fifth-degree criminal possession of marijuana and unlawful possession of marijuana.

Under Penal Law §221.10, a person is guilty of fifth-degree possession of marijuana if he or she possess marijuana in a public place and the marijuana is “burning or open to public view.”

“Public place” is defined under Penal Law §240 as “a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.”

Judge Cesare

In Velez, Cesare said, the only allegation related to place is that McNicholl found the marijuana cigarette “on the ground” at a particular intersection. She rejected the government’s argument that “the ground” connotes being out in the open.

“The word ‘ground’ indicates the surface of the earth; a place a person might tread or stand,” Cesare said. “Grounds, however, may be public or private, and nothing in the instant complaint permits the court to reasonably infer one or the other.”

Francis White of the Legal Aid Society appeared for Velez and Assistant District Attorney Shea Donato appeared for the Manhattan District Attorney’s Office.

In her decision to dismiss the possession charge, Cesare cited the Court of Appeals’ November 2015 decision in People v. Afilal, 26 NY3d 1050, another case involving a defendant accused of fifth-degree criminal possession of marijuana in which the court found that a complaint that does not describe the public place where the offense was allegedly committed should be dismissed.

Since the Court of Appeals ruling in Afilal, the case has been cited in numerous decisions by lower courts to dismiss charges of fifth-degree criminal possession of marijuana.

In June, the Appellate Term, Second Department, reversed a man’s fifth-degree marijuana possession conviction in People v. Cruz, 2013-1896.

The complaint against Ruben Cruz stated that he possessed marijuana in front of 43 Stockholm St. in Brooklyn and that it could seen by passers-by, but the appellate term found that merely alleging that a defendant was standing across from or opposite a particular address does not meet the “public space” standard.

Judge Lyle Frank, sitting in Manhattan Criminal Court, also cited Afilal in his March decision to dismiss charges of unlicensed general vending and failure to wear a general vendor license filed against a woman who was hawking pins near Union Square.

In that case, People v. Li, 2015NY046526, the complaint alleged that Xulan Li was selling her merchandise “across from 27 Union Square West,” a description that he said was insufficient to meet the public space standard.