Marijuana Possession in a Public Place in New York
In People v. Jackson (18 NY3d 738, 967 NE2d 1160, 944 NYS2d 715 ), the Court observed that when a legislature drafts criminal statutes regulating conduct in "public places," it takes one of three courses of action.
A legislature either:
(1) assigns a specific meaning to "public places" unique to the offense;
(2) leaves the phrase "public place" undefined; or
(3) incorporates a definition of "public place" by referring to a preexisting definition of the term within another statute (id. at 742-743).
With regard to Penal Law 221.10 (1), the marihuana crime at issue in Jackson, the statute expressly incorporates by reference the definition of "public place" from Penal Law 240.00 (1).
Therefore, the Jackson Court used the Penal Law article 240 definition of a "public place" to determine whether the defendant's possession of marihuana inside his vehicle violated the statute.
In People v. Jackson, the accusatory instrument charging the defendant with criminal possession of marihuana in the fifth degree stated that the arresting officer had smelled a strong odor of marihuana emanating from inside the car in which the defendant was sitting and that the officer had observed the defendant holding marihuana in his hand (id. at 747).
Additional allegations indicated that the contraband was in a ziplock bag (id.).
The Court of Appeals stated that one could assume, from the accusatory instrument, that the arresting officer could see the substance in the ziplock bag from outside the car, and that therefore members of the public could see it from the same vantage point (id. at 747-748).
In People v. Jackson, the issue before the Court was whether the allegations that a quantity of marijuana was "open to public view" was too conclusory to establish a prima facie case.
The crux of the issue, then, was not with regards to the specific facts of the case, but rather, what evidentiary facts are necessary in order to establish the officer's conclusion that the marijuana was open to public view.
In that context, the Court held that "when an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument." (Id.)
Applying that rule to the facts in Jackson, the Court held that a particular item "open to public view" does not require the "exercise of professional skill or experience on the part of a police officer warranting a specialized explanation" and that "in most cases the basis for such an allegation can be discerned by drawing reasonable inferences from all the facts set forth in the accusatory instrument." (Id. at 747).