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Ari Rosmarin

Abstracted from:  Ari Rosmarin, The Phantom Defense: the Unavailability of the Entrapment Defense in New York City “Plain View” Marijuana Arrests, 21 Journal of Law & Policy 21 (2012) (Student Note)(250 Footnotes)

      New York City Police Department (“NYPD”) officers stopped a twenty-nine-year-old black truck driver leaving a Bronx housing project one evening. According to the man,

       [The officers] told me to show them if I had anything illegal. They said if I didn't have much, there'd be no problem. So I took out the nickel bag and they arrested me. I said ‘Come on, I showed you everything I had,’ but they just put cuffs on me.

      The man was arrested and charged with criminal possession of marijuana in the fifth degree under Section 221.10 of the New York State Penal Law-- possession in a public place burning or open to public view (“MPV”), a B misdemeanor. Had the marijuana remained in his pocket, however, prosecutors could have only charged the man with unlawful possession of marijuana under Section 221.05 of the penal law--a nonfingerprintable violation. Given the variance between the consequences of the two offenses, it is particularly troubling that criminal defense attorneys in New York City report that police make arrests such as this one with great frequency.

      While attorneys and academics had been concerned about the unprecedented number of low-level marijuana arrests in New York City throughout the 1990s and early 2000s, the phenomenon was not comprehensively studied until 2008, when the New York Civil Liberties Union published a report, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City 1997-2007 (“Marijuana Arrest Crusade”), written by Harry G. Levine and Deborah Peterson Small. The report, which remains the most extensive analysis of the NYPD's marijuana arrest practices, brought significant media and advocacy attention to the issue. Advocates used the occasion to designate New York City the “Marijuana Arrest Capital” of the world.

      New York State's current marijuana laws were enacted in 1977, when the state legislature decriminalized possession of less than 25 grams of marijuana under the Marijuana Reform Act and removed marijuana from the definition of controlled substances. The Act sought to “reduce the penalties for possession and sale of marihuana and in particular to ‘decriminalize’ the possession of a small amount of marihuana for personal use.”

      Yet arrests for marijuana possession in New York City have exploded in the past fifteen years. In 2011 alone, the NYPD arrested 50,684 people for section 221.10 offenses--more arrests than the total number of such arrests between 1978 and 1996 combined. Criminal possession of marijuana was the most common arrestable offense in 2011. This amounts to a marijuana arrest approximately every ten minutes or one out of seven criminal cases in New York City's courts. The significance of such statistics should not be underestimated; despite a statutory decriminalization policy, the NYPD under the Bloomberg administration made over 400,000 fifth degree criminal possession of marijuana arrests between 2002 and 2011. These arrests have significant consequences for arrestees, impacting employment, immigration status, child custody, educational opportunities, and driving privileges, among other ramifications.

      Moreover, descriptions of police trickery in securing MPV arrests, such as the experience of the man in the Bronx recounted above, have become commonplace in major New York City mainstream media outlets. The problem has grown so large that NYPD Commissioner Raymond Kelly felt compelled to issue a special order in September 2011 reminding NYPD officers that directing an individual to display any marijuana he or she is carrying cannot create a chargeable MPV offense. The order reads in part:

       A crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marihuana. Such circumstances may constitute a violation of Penal Law section 221.05-Unlawful Possession of Marihuana, a violation[,] not Penal Law section 221.10 (1) - Criminal Possession of Marihuana in the 5th Degree, a class B misdemeanor . . . . To support a charge of PL 221.10 (1) the public display must be an activity undertaken of the subject's own volition. Thus, uniformed members of the service lawfully exercising their police powers during a stop may not charge the individual with PL 221.10 (1) CPM 5th if the marihuana recovered was disclosed to public view at an officer's direction.
      While advocates of changes to NYPD marijuana policing cautiously praised the Commissioner's order, and marijuana arrests slightly decreased in the months following its issuance, recent evidence suggests the order has ultimately had little impact on marijuana arrest practices.

      Even New York State Governor Andrew Cuomo acknowledged the impropriety of such arrests during the 2012 state legislative session by unsuccessfully proposing legislation to change the penal code to address the vast number of marijuana arrests. Yet if knowledge of improper NYPD marijuana enforcement practices is so widespread, why do entrapment defenses fail to defeat MPV prosecutions in court?

      This Note examines NYPD marijuana enforcement practices in light of New York State's entrapment law. It argues that although the NYPD appears to be in contravention of both the law and stated NYPD policy, entrapment defenses are still unavailable to many MPV defendants. Part I of this Note explores the causes of the substantial increase in MPV arrests since the mid-1990s. Part II details the significant consequences of misdemeanor marijuana arrests and convictions for New York City defendants. Part III examines New York State entrapment law as it applies to an emblematic MPV arrest, arguing that both traditional entrapment and entrapment by estoppel defenses should succeed in invalidating many MPV arrests. Part IV outlines the disincentives and obstacles to successfully arguing entrapment defenses in MPV arrests in New York City, particularly logistical hurdles, court overcrowding, police corruption, and considerable evidentiary burdens. Finally, Part V explores the strengths and weaknesses of policy proposals to protect the rights of MPV defendants and limit police misconduct in this area. Ultimately, this Note asserts that changes to New York State's marijuana laws are likely the most sustainable approach to reducing improper MPV arrests.

* * *

      While recent directives by NYPD leadership to avoid improper MPV arrests may prove fruitful, the unavailability of possibly meritorious entrapment defenses to thousands of defendants in New York City will remain an outstanding problem. The State Legislature can and should act to expand the decriminalization framework of the existing New York State marijuana laws and eliminate the incentives behind improper arrests. However, until policymakers and the gatekeepers of New York City's criminal justice system take responsibility for a broken system, defendants will be left with limited options to challenge illegitimate MPV arrests.



. J.D. Candidate, Brooklyn Law School, 2013; B.A., Columbia College, Columbia 2006