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Legal Brief Bank Working to Reform Marijuana Laws Legal Brief Bank NEW YORK V. TOGLIA CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK : PART AP 5 _____________________________________ THE PEOPLE OF THE STATE OF NEW YORK -against- Docket No. 99N085922 KENNETH S. TOGLIA, Defendant _____________________________________ S I R S: Please take notice that, on Wednesday, February 23, 2000, at 9:30 in the forenoon, at the Supreme Court Building, 100 Centre Street, New York, New York, Part 5 thereof, Defendant Kenneth TOGLIA will move that the charges against him be dismissed in the interests of justice, pursuant to C.P.L., ¤¤ 210.20 and 210.40, and request a Hearing on the same. Defendant also will move that the charges against him be dismissed as marijuana prohibition violates the privileges and immunities clause, Article IV, ¤ 2, of the Constitution of the United States. In addition, Defendant will move for discovery and inspection of the following: 1. the marijuana seized from the alleged purchaser and the packaging in which that marijuana was contained; 2. the marijuana seized from defendant's automobile and the packaging in which that marijuana was contained. A Memorandum of Law and Affirmation in Support thereof are annexed hereto. Yours, etc. New York, New York January 20, 2000 RUTH M. LIEBESMAN, ESQUIRE 67 Wall Street, Suite 2411 New York, New York 10005 (212) 804-5740 To: Clerk, Criminal Court of the City of New York Bruno Bier, Esquire, Assistant District Attorney The National Organization for the Reform of Marijuana Laws (www.norml.org) 1 6/24/2003 Working to Reform Marijuana Laws CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK : PART AP 5 _____________________________________ Docket No. 99NO85922 THE PEOPLE OF THE STATE OF NEW YORK AFFIRMATION OF -against- RUTH M. LIEBESMAN IN SUPPORT OF DEFENDANT'S KENNETH S. TOGLIA, Defendant MOTION TO DISMISS _____________________________________ RUTH M. LIEBESMAN, being duly sworn, hereby affirms: 1. I am an attorney licensed to practice before this Court, with offices at 67 Wall Street, Suite 2411, New York, NY 10005. 2. I am counsel for the defendant in this action, Kenneth Toglia. 3. This affirmation is submitted in support of defendant John Toglia's Motion to Dismiss in the Interest of Justice, pursuant to C.P.L., ¤¤ 210.20 and 210.40, and to dismiss the action as marijuana prohibition violates the privileges and immunities clause, Article IV, ¤ 2, of the United States Constitution 4. This affirmation adopts and incorporates by reference the Memorandum of Law which is annexed hereto. 5. All information which is contained in the annexed Memorandum of Law is based either upon personal knowledge, research, or upon information and belief. 6. It is counsel's belief that the instant cause is appropriate for dismissal in the interests of justice, in accordance with Criminal Procedure Law, sections 210.20 and 210.40. 7. Counsel also believes that, should the instant cause not be dismissed in the interest of justice, the material which defense counsel has requested the opportunity to inspect and photograph is necessary for the proper defense of this cause. 8. The Affidavits annexed as Exhibits were signed in the presence of counsel, who is not a notary public, but affirm that the signatures are genuine. Several of the affiants are house bound due to illness, and cannot obtain notarization. Notarized versions of the affidavits of those affiants who are able to leave their homes will be submitted under separate cover. 20 January 2000 __________________________ Ruth M. Liebesman _____________________________________ Docket No. 99NO85922 THE PEOPLE OF THE STATE OF NEW YORK MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S -against- MOTION TO DISMISS The National Organization for the Reform of Marijuana Laws (www.norml.org) 2 6/24/2003 Working to Reform Marijuana Laws KENNETH S. TOGLIA, Defendant _____________________________________ Preliminary Statement Defendant Kenneth Toglia respectfully submits this Memorandum of Law in support of his motion to dismiss in the interests of justice, pursuant to C.P.L., ¤¤ 210.20 and 210.40, the charges against him. This memorandum is also submitted in support of Defendant's motion to dismiss under the Article IV, Section 2, of the Constitution of the United States, and his motion for discovery and inspection. Statement of the Facts Kenneth Toglia, the defendant in the above-captioned criminal action, is a trained social care professional, specializing in the aiding persons suffering from AIDS. He has a New York State Pre & Post HIV Test Counseling Certificate. He also has a Detox Year Acupuncture Certificate from Lincoln Hospital. Mr. Toglia is an activist in the fights against homelessness and AIDS. In the course of his community activism, Mr. Toglia learned from various sources that people who suffer with AIDS or who are undergoing chemotherapy for cancer, and all people who suffer from AIDS Wasting Syndrome, as well as those being treated from Multiple Sclerosis (MS) and other terrible diseases, can be greatly helped by the therapeutic effects of medicinal marijuana. Because he could not stand to watch other people suffering, and because he was aware that he had the ability to ease some of that suffering, Mr. Toglia began distributing, at cost, marijuana to those persons who could document that they had AIDS. He subsequently expanded his distribution to include people suffering from Multiple Sclerosis, Glaucoma, who were undergoing chemotherapy, or were suffering from other ailments alleviated by marijuana. Mr. Toglia also began delivering marijuana to some of those sick people were too bedridden to obtain marijuana for themselves. During the time that he has been distributing medical marijuana to sick people, Mr. Toglia has had related to him a great deal of anecdotal evidence in support of what he has been doing. He has heard from a number of people that they have stopped losing weight. In some cases, his "clients" ceased losing a pound per day, which had made their demise only brief a matter of time, and had begun regaining weight. He has seen for himself the positive impact of the marijuana he distributes in the lives and health of the sick people to whom he delivers it. Mr. Toglia thus considers use of marijuana by his clients a medical necessity which prolongs or saves the lives of those whom he assists. Because many of those people cannot meet that necessity without assistance, Mr. Toglia delivers to those who cannot obtain for themselves. On September 29, 1999, Kenneth Toglia was in his automobile, on his way to the homes of two clients of the medical marijuana buyers club. He was with his wife, who is a registered nurse. Like any person to whom Mr. Toglia dispenses medical marijuana, these two people have a documented medical need for the medication. See the Affidavits of Kenneth Toglia and Lucia Cammarata, and John Burkhardt annexed hereto as Exhibits A, B and C. While driving past Second Avenue and First Street, Mr. Toglia saw Richard Lohmann, to whom Mr. Toglia had lent Forty ($40.00) Dollars a week before. Mr. Toglia exited his automobile and went to where Mr. Lohmann was standing. After a brief conversation, Mr. Lohmann handed him two Twenty ($20.00) Dollar bills to Mr. Toglia. Mr. Toglia then returned to his automobile, where he was arrested by New York City Police officers, who had witnessed Mr. Lohmann handing money to Mr. Toglia. See the Affidavit of Richard Lohmann, annexed hereto as Exhibit D. The police officers searched Mr. Toglia and his automobile, as well as Mr. Lohmann. They claimed to have found that Mr. Lohmann had marijuana in his possession. They also found The National Organization for the Reform of Marijuana Laws (www.norml.org) 3 6/24/2003 Working to Reform Marijuana Laws marijuana in Mr. Toglia's automobile, which was packaged in an entirely different manner from the marijuana Mr. Lohmann had in his possession. Mr. Toglia was charged with Criminal Sale of Marijuana in the Fourth Degree (P.L. 221.40) and Criminal Possession of Marijuana in the Fourth Degree (P.L. 221.15). This Memorandum of Law is now respectfully submitted in support of Kenneth Toglia's Motion to Dismiss in the Interests of Justice, pursuant to New York Criminal Procedure Law, ¤¤ 210.20 and 210.40, and pursuant to Article IV, Section 2, of the Constitution of the United States of America. ARGUMENT POINT I: THE CHARGES AGAINST KENNETH TOGLIA SHOULD BE DISMISSED IN THE INTERESTS OF JUSTICE. A. A BALANCING OF THE FACTORS DETERMINED TO BE RELEVANT BY THE LEGISLATURE CLEARLY COMES DOWN IN FAVOR OF DISMISSAL. A trial court has the inherent authority to terminate a prosecution in the interests of justice, in the exercise of sound judicial discretion. People v. Kirby, 92 A.D.2d 858, 460 N.Y.S.2d 1033 (2d Dept. 1983). See also People v. Weaver, 112 A.D.2d 782, 492 N.Y.S.2d 280 (1985). New York Criminal Procedure Law, Sections 210.20 and 210.40, thus authorize a trial court to dismiss criminal charges in the interests of justice when the ends of justice would be served by such a dismissal. Section 210.40 states in relevant part: An indictment or any count thereof my be dismissed in furtherance of justice ... when ... such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following: a.
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