The PEOPLE of the State of New York, Respondent,
KAYE, Chief Judge.
Penal Law § 220.18(5) makes it a felony to "knowingly and unlawfully possess * * * six hundred twenty-five milligrams of a hallucinogen." The question of statutory interpretation before us is whether "knowingly" applies to the weight of the controlled substance. We conclude that it does and that the trial evidence was insufficient to satisfy that mental culpability element.
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Viewed in a light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), the trial evidence revealed that on October 2, 1990 defendant asked his friend David Hopkins to order and receive a shipment of hallucinogenic mushrooms on his behalf. Hopkins agreed, and adhering to defendant's instructions placed a call to their mutual friend Scott in San Francisco and requested the "usual shipment." Tipped off to the transaction, on October 5 State Police Investigator Douglas Vredenburgh located the package at a Federal Express warehouse in Binghamton. The package was opened (pursuant to a search warrant) and resealed after its contents were verified. The investigator then borrowed a Federal Express [p. 500] uniform and van and delivered the package to Hopkins, the addressee, who was arrested upon signing for it.
Hopkins explained that the package was for defendant and agreed to participate in a supervised delivery to him. In a telephone call recorded by the police, Hopkins notified defendant that he got the package, reporting a "shit load of mushrooms in there." Defendant responded, "I know, don't say nothing." At another point Hopkins referred to the shipment containing two pounds. The men agreed to meet later that evening at the firehouse in West Oneonta.
At the meeting, after a brief conversation, Hopkins handed defendant a substitute package stuffed with newspaper. Moments after taking possession, defendant was arrested. He was later indicted for attempted criminal possession of a controlled substance in the second degree.
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The case proceeded to trial, where the evidence summarized above was adduced. Additionally, the police chemist testified that the total weight of the mushrooms in Hopkins' package was 932.8 grams (about two pounds), and that a 140-gram sample of the package contents contained 796 milligrams of psilocybin, a hallucinogen (Penal Law § 220.00; Public Health Law § 3306 [schedule I][d]). He did not know, however, the process by which psilocybin appears in mushrooms, whether naturally, by injection or some other means. [p. 501] Nor was there any evidence as to how much psilocybin would typically appear in two pounds of mushrooms.
At the close of the People's case, defendant moved to dismiss for insufficient proof that he knew the level of psilocybin in the mushrooms, and also requested a charge-down to seventh degree attempted criminal possession, which has no weight element. Both applications were denied, defendant was convicted as charged, and he was sentenced as a second felony offender to 10 years-to-life.
The Appellate Division affirmed. The court held that a defendant must know the nature of the substance possessed, and acknowledged that the weight of the controlled substance is an element of the crime. The court declined, however, to read the statute as requiring that a defendant have actual knowledge of the weight. Instead, the court held that "the term 'knowingly' should be construed to refer only to the element of possession and not to the weight requirement." (184 A.D.2d 24, 27, 591 N.Y.S.2d 218.)
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We now reverse.
Although the present case involves an attempt, analysis begins with the elements of the completed crime, second degree criminal possession of a controlled substance. Penal Law § 220.18(5) provides:
"A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses: * * *[p. 502] It is undisputed that the knowledge requirement of the statute applies to the element of possession (see also, Penal Law § 15.00 ), and that defendant must also have "actual knowledge of the nature of the possessed substance" (People v. Reisman, 29 N.Y.2d 278, 285, 327 N.Y.S.2d 342, 277 N.E.2d 396). At issue is whether defendant must similarly know the weight of the material possessed. That is a question of statutory interpretation, as to which the Court's role is clear: our purpose is not to pass on the wisdom of the statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment (People v. Smith, 79 N.Y.2d 309, 311, 582 N.Y.S.2d 946, 591 N.E.2d 1132).
"5. six hundred twenty-five milligrams of a hallucinogen."
In effectuating legislative intent, we look first of course to the statutory language. Read in context, it seems evident that "knowingly" does apply to the weight element. Indeed, given that a defendant's awareness must extend not only to the fact of possessing something ("knowingly * * * possesses") but also to the nature of the material possessed ("knowingly * * * possesses * * * a hallucinogen"), any other reading would be strained. Inasmuch as the knowledge requirement carries through to the end of the sentence (see, People v. Reisman, 29 N.Y.2d, at 285, 327 N.Y.S.2d 342, 277 N.E.2d 396), eliminating it from the intervening element--weight--would rob the statute of its obvious meaning. We conclude, therefore, that there is a mens rea element associated with the weight of the drug.
That reading is fortified by two rules of construction ordained by the Legislature itself. First, a "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability" (Penal Law § 15.15). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability" only when a mental state "is required with respect to every material element of an offense" (id.).
By ruling that a defendant need not have knowledge of the weight, the Appellate Division in effect held, to that extent, that second degree criminal possession is a strict liability crime (see, Penal Law § 15.10). That is an erroneous statutory construction unless a legislative intent to achieve that result is "clearly indicat[ed]" (Penal Law § 15.15).
In a similar vein, the Legislature has provided in Penal Law § 15.15(1):
"Construction of statutes with respect to culpability requirements.Accordingly, if a single mens rea is set forth, as here, [n. 2] it presumptively applies to all elements of the offense unless a contrary legislative intent is plain.
[p. 503] "1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms 'intentionally,' 'knowingly,' 'recklessly' or 'criminal negligence,' or by use of terms, such as 'with intent to defraud' and 'knowing it to be false,' describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears." (Emphasis added.)
2. "Unlawfully" is not a term of mental culpability but means "in violation of article thirty-three of the public health law" (Penal Law § 220.00).
We discern no "clear" legislative intent to make the weight of a drug a strict liability element, as is required before we can construe the statute in that manner (Penal Law § 15.15, ). Moreover, the over-all structure of the drug possession laws supports the view that a defendant must have some knowledge of the weight.
There are six degrees of criminal possession of a controlled substance, graded in severity from a class A misdemeanor (Penal Law § 220.03 [seventh degree] ) up to an A-I felony (Penal Law § 220.21 [first degree] ). The definition of each begins identically: "A person is guilty of criminal possession of a controlled substance in the _____ degree when he knowingly and unlawfully possesses * * *." The primary distinctions between one grade or another relate to the type and weight of the controlled substance, and in some instances the existence of an intent to sell (e.g., Penal Law § 220.16) or intent to sell combined with a prior drug conviction (e.g.,Penal Law § 220.09).
Taking hallucinogens as an example, knowing and unlawful possession of any amount, even a trace (see, People v. Mizell, 72 N.Y.2d 651, 655, 536 N.Y.S.2d 21, 532 N.E.2d 1249) is seventh degree possession (Penal Law § 220.03); 25 milligrams or more, fourth degree (Penal Law § 220.09); 125 milligrams or more, third degree (Penal Law § 220.16; and 625 milligrams, second degree (Penal Law [p. 504] § 220.18). The maximum penalty for these crimes ranges from one-year incarceration to a life sentence, yet the only statutory difference relates to the weight of the drugs. To ascribe to the Legislature an intent to mete out drastic differences in punishment without a basis in culpability would be inconsistent with notions of individual responsibility and proportionality prevailing in the Penal Law (see, e.g., Penal Law § 15.05).
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The People's contrary argument is based in part on a concern that it would be "prohibitively difficult," if not impossible, to secure convictions if they were required to prove that a defendant had knowledge of the weight. We disagree.
Often there will be evidence from which the requisite knowledge may be deduced, such as negotiations concerning weight, potency or price (see, e.g., People v. Acosta, 80 N.Y.2d 665, 668, n. 1, 593 N.Y.S.2d 978, 609 N.E.2d 518 and 672-673). Similarly, for controlled substances measured on an "aggregate weight" basis (see, e.g., Penal Law § 220.06), knowledge of the weight may be inferred from defendant's handling of the material, because the weight of the entire mixture, including cutting agents, is counted (see generally, Rosenblatt, New York's New Drug Laws and Sentencing Statutes, at 45- 48 ; Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law art. 220, at 9 [comparing aggregate and pure weight statutes] ).
By contrast, that same inference may be unavailable for controlled substances measured by "pure" weight, like psilocybin. The effective doses of these drugs may be minuscule, and they are customarily combined with other substances to facilitate handling and use. In these circumstances it may indeed be difficult to show defendant's knowledge of the weight. Although we cannot simply read the knowledge requirement out of the statute, these "compelling practical considerations" may inform our interpretation of that element (see, People v. Mizell, 72 N.Y.2d, at 654, 536 N.Y.S.2d 21, 532 N.E.2d 1249).
The Legislature has decided that persons who illegally possess larger quantities of controlled substances should be punished more severely; their conduct is more repugnant and presents a greater threat to society. Because drug possession is not a strict liability crime, however, an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater. A purpose of the knowledge requirement, then, is to avoid overpenalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated.
That legislative purpose can be satisfied, among other ways, with evidence that the pure weight of the controlled substance [p. 506] possessed by defendant is typical for the particular form in which the drug appears. This correlation between the pure weight typically found, and the pure weight actually possessed, substantially reduces the possibility that a person will unjustly be convicted for a more serious crime.
To illustrate: a person may knowingly possess 50 doses of LSD on blotter paper but, understandably, have no awareness what the pure LSD weighs; upon chemical analysis it is determined that defendant actually possessed 2.5 milligrams. If there is evidence that a typical dose of LSD weighs .05 milligrams (see, Chapman v. United States, 500 U.S. 453, 457, 111 S.Ct. 1919, 1923, 114 L.Ed.2d 524, 533), the jury could conclude, within the meaning of the statute, that defendant knowingly possessed more than 1 milligram, and convict of fourth degree possession (Penal Law § 220.09[1 mg or more] ). If, however, because of some manufacturing defect unknown to defendant those 50 doses weighed 10 milligrams, defendant should not be convicted of more serious third degree possession (Penal Law § 220.16[5 mg. or more] ).
There may of course be other ways of proving defendant's knowledge within the meaning of the statute. Our purpose today, however, is not to survey all of the permissible methods but to clarify that the statute does in fact contain a weight-related mental culpability element.
With the foregoing principles in mind, we consider whether there was sufficient evidence to convict defendant of attempted second degree possession, an A-II felony.
Certainly there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that defendant attempted and intended to possess a two-pound box of hallucinogenic mushrooms. It is also undisputed that, upon testing, the mushrooms in the particular box defendant attempted to possess-- the one sent to Hopkins by Scott--contained more than 650 milligrams of psilocybin. The issue we must decide, however, is whether sufficient evidence was presented at trial from which it could be inferred that defendant had the requisite knowledge of the weight.
We disagree with the People's suggestion that the evidence of defendant's knowing attempt to possess two pounds of mushrooms, without more, could satisfy their burden of proof. The controlled substance here is psilocybin; had defendant ordered a specific quantity of that drug, plainly that would satisfy the knowledge element. But defendant attempted to possess two pounds of mushrooms, only a small portion of which was pure psilocybin.
Although in these circumstances defendant could properly be convicted of attempting to possess the amount of psilocybin that would typically appear in two pounds of hallucinogenic mushrooms, there was no evidence linking psilocybin weight to mushroom weight. Indeed, there was no evidence indicating whether psilocybin grows naturally or is injected into the mushrooms, or of the usual dose of the drug--matters not within the ken of the typical juror. We thus conclude on this record that there was insufficient evidence to satisfy the knowledge requirement within the meaning of the statute.
That deficiency does not absolve defendant of all criminal liability. There is sufficient evidence to sustain a conviction for the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element.
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Order reversed, etc.