People v. Allen, 1998 N.Y. Int. 0125 (Oct. 22, 1998).

CRIMINAL - SOLICITATION - MARIJUANA - PENAL LAW 100.20

ISSUE & DISPOSITION

Issue

Whether the exemption provision under Penal Law § 100.20 precludes prosecution of Defendants for solicitation based on their attempt to purchase non-criminal amounts of marijuana from undercover police officers.

Disposition

Yes. Following the sale of marijuana, the seller is criminally liable for the sale and the buyer is criminally liable for the resulting possession; however, pursuant to Penal Law § 100.20, neither is liable for the solicitation of the other.

SUMMARY

In the spring of 1995, the Rochester City Police Department conducted a series of "reverse sting" operations in order to apprehend marijuana buyers. Because police officers cannot sell marijuana, the officers sold small amounts of oregano, which were passed off as marijuana, to members of the public. After exchanging cash for the oregano, each "would-be buyer" was arrested and charged with criminal solicitation in the fifth degree, a violation under Penal Law § 100.00. The operation resulted in many arrests; many of the cases proceeded to trial. Before trial, Defendants moved to dismiss the charges pursuant to the exemption found in Penal Law § 100.20 which provides that "[a] person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited." The trial court agreed with Defendants' arguments and dismissed the charges. On appeal, the County Court of Monroe reversed and reinstated the charges. The Court of Appeals granted Defendants leave to appeal, combining fifty-four criminal cases to determine what effect, if any, the exemption contained in Penal Law § 100.20 has on the prosecution of the Defendants apprehended in the Rochester reverse-sting operation.

Prepared by the liibulletin-ny Editorial Board.