This matter comes before the Court by Defendant’s motion for an order amending the order and conditions of probation to allow for the Defendant to use medical marijuana during his ten (10) probationary period. Oral arguments were heard on June 12, 2018. The People do not oppose the Defendant’s request to the extent it is determined to be medically necessary and that the Defendant continue to be monitored by his treating physician and that the Defendant not be allowed to drive a vehicle while using medical marijuana.On May 2, 2011, the Defendant pled guilty to Criminal Sexual Act in the Second Degree pursuant to Penal Law §130.45(1), a Class D felony.1 The Defendant was thereafter sentenced on July 19, 2011 to six (6) months incarceration in the Sullivan County Jail with credit for time served; ten (10) years of felony probation with the Intensive Supervision Program (ISP), sex offender conditions, drug and alcohol conditions, mental health evaluations and conditions if appropriate, as well as the standard conditions and any other conditions deemed appropriate by the Probation Department, an Order of Protection for the victim, and a fine and surcharge. On October 20, 2011, the Defendant was determined to be a Level 1 sex offender for registration purposes after a SORA hearing.During a December 8, 2017 home visit by the Defendant’s Probation Officer, the Defendant was found to be in possession of approximately two (2) grams of marijuana, an unregistered cell phone, an unregistered cell phone provider as an internet service provider, and an unregistered email address as an internet identifier. As such, Defendant was alleged to be in violation of his conditions of probation. The People and the Defendant agreed to proceed with this matter as a Pre-Superior Court Information (SCI) matter with the Defendant waiving statutory time constraints, so that the Defendant could be given additional time to come into compliance and remain compliant with his probation conditions.The Defendant requests that he be permitted to continue taking part in the New York State Medical Marijuana Program and the conditions of his probation be amended to allow same. This Court granted oral argument on June 12, 2017, at which time the Defendant testified that he was in a serious motorcycle accident in the summer of 2017. The Defendant testified that as a result of the accident, he was in a coma for seven (7) days and was required to remain in the hospital for more than two (2) months. The Defendant suffered a broken pelvis, broken femur, and significant skin wounds on his legs that required skin grafts and the use of a “Wound Vac.” The Defendant’s leg injuries cause him to suffer chronic pain due to nerve damage.Following his discharge from the hospital, the Defendant was prescribed, among other drugs, the narcotic Percoset, to help with his nerve pain. Despite these medications, the Defendant testified that he continued to suffer from muscle spasms and significant pain, and that the medications affected his ability to properly function on a daily basis because they “knocked him out.” The Defendant testified that his orthopedist recommended that he apply for the New York State Medical Marijuana Program because the medical marijuana would be more successful in reducing the muscle spasms and chronic pain.The Defendant applied for the New York State Medical Marijuana Program and was referred to Dr. Laxmikant Vithaldas Bhoiwala.2 Dr. Bhoiwala testified that the Defendant met the criteria for a medical marijuana prescription and approved the Defendant for a one (1) year medical marijuana vaporizer prescription on December 31, 2017.3 Dr. Bhoiwala testified that he has less concern with prescribing medical marijuana to help manage and control chronic pain and other ailments than he does with prescribing narcotic drugs, which can be addictive and have other negative side effects.4The Defendant testified that using the medical marijuana is preferable to him than the Percoset and other prescription drugs previously given to him because his muscle spasms have significantly decreased, his chronic pain has lessened, and he is better able to function on a daily basis. The Defendant further testified that he plans to discontinue using medical marijuana if his injuries heal, and he is amenable to reducing the amount of medical marijuana prescribed to him as his healing progresses. The Defendant admitted his use of marijuana prior to being medically approved for a medical marijuana prescription. He did not tell his probation officer because he was “scared.”New York State provides broad protection for those prescribed medical marijuana. New York Public Health Law §3369 provides that, “Certified patients, designated caregivers, practitioners, registered organizations and the employees of registered organizations shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for the certified medical use or manufacture of marijuana, or for any other action or conduct in accordance with this title.” Public Health Law §3369. One’s use of medical marijuana is protected if he or she is a certified patient. A certified patient is an individual that is diagnosed by a registered practitioner to have a serious condition, and following the review of past treatments, the patient is likely to receive therapeutic or palliative benefit from the primary treatment with medical marijuana for the serious condition. Public Health Law §3361. A serious condition includes having one of the following severe debilitating or life-threatening medical diagnoses: cancer, positive status for human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), amyotrophic lateral sclerosis, Parkinson’s disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s disease, post-traumatic stress disorder, or any of the following conditions where it is clinically associated with, or a complication of, a condition under this paragraph or its treatment: cachexia or wasting syndrome; severe or chronic pain; severe nausea; seizures; severe or persistent muscle spasms; or such conditions as are added by the commissioner.Public Health Law §3360.New York’s Public Health Law, however, does not address whether an individual who is on felony probation with specific conditions to abstain from the use of alcohol or any illicit substances, including marijuana, can be prescribed and allowed to use medical marijuana during their probationary sentence. Those on probation are allowed to use medications that are legally prescribed to them, including those that would appear during routine drug testing, as for example, methadone. Given the fairly recent legalization of medical marijuana in the State of New York and lack of relevant case law, it appears to this Court to be a matter of first impression. As such, this Court will look to how other states who have legalized medical marijuana have addressed the issue of probationers’ use of medical marijuana during his or her probationary sentence.Under the Arizona Medical Marijuana Act (AMMA), the courts in the State of Arizona cannot exclude a qualified patient from using medical marijuana as a condition of probation. See, Reed-Kaliher v. Hoggatt, 347 P.3d 136, 139 (Ariz. 2015). In Hoggatt, supra, the defendant pled guilty to possession of marijuana for sale and attempted possession of a narcotic drug for sale. Id. at 138. After serving over one (1) year in prison, the defendant faced three (3) years of probation. Id. While in prison, Arizona passed the AMMA, which allows a person who has been diagnosed by a physician as having a debilitating medical condition to apply for a card recognizing him as a registered qualifying patient. Id. Debilitating medical conditions include chronic medical conditions that produce severe and chronic pain. Id. The defendant suffered from chronic pain due to a fractured hip. Id. During probation and following the prescription of a registry identification card, the probation officer added a condition barring the possession or use of marijuana for any reason as a condition of the defendant’s probation. Id.The defendant sought to amend his probation conditions to remove the marijuana prohibition, which was denied by the trial court and lower appellate court. The Supreme Court of Arizona, in reversing the lower courts, held that any condition of probation that would be violated by medical marijuana use, that is compliant with the AMMA, is illegal and unenforceable. Id. at 140. The AMMA’s immunity provision states that, “[a] registered qualifying patient…is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege…[f]or…medical use of marijuana pursuant to [AMMA],” as long as the patient complies with statutory limits on quantity and location of marijuana use. Id. The AMMA does not prohibit those who have been convicted of drug offenses from using medical marijuana consistent with the act. Id. at 139. The court found that the immunity provision of the AMMA included coverage for probationers. Id.Similarly, in State v. Nelson, 346 Mont. 366 (MT 2008), the Supreme Court of Montana found that a defendant, who was convicted of criminal possession or manufacture of dangerous drugs, was permitted to use medical marijuana during his probationary sentence. The defendant’s conditions of probation only allowed the defendant to use medical marijuana that was prescribed in pill form, even though Montana’s Medical Marijuana Act of 2004 (MMA)5 allowed qualified medical marijuana patients to possess up to six (6) marijuana plants and one (1) ounce of usable marijuana. The Supreme Court of Montana reversed the imposition of those conditions of probation, as they denied the defendant — a qualifying patient — the right to use medical marijuana in accordance with the MMA. Id.Courts in other states, such as Maine, California, and Michigan have routinely held that a defendant’s use of medical marijuana may be denied or restricted if his or her conviction bears a logical relationship to potential drug use, such as possession of controlled substance with or without the intent to distribute, sale of a controlled substance, driving while intoxicated or ability impaired by drugs, and possession of a firearm by a felon. See, United States v. Friel, 699 F.Supp.2d 328, 330 (D. Me. 2010), [defendant who was convicted of possession of marijuana with intent to distribute and possession of a firearm was not permitted to use medical marijuana while on probation]; People v. Magyari, 2017 WL 127744 (Mich Ct App Jan. 12, 2017)[defendant who was convicted of driving while intoxicated and driving without a valid license was not permitted use of medical marijuana while on probation].In People v. Leal, 210 Cal App 4th 829 (Cal Ct App 2012), a defendant who was convicted of possessing marijuana for sale and three (3) firearms offenses wished to amend his conditions of probation to allow the use of medical marijuana. The California Court of Appeals, in Leal, set forth a test whereby a condition of probation shall be held invalid where it has no relationship to the crime of which the offender was convicted, where it relates to conduct that is not criminal itself, and where it requires or forbids conduct that is not reasonably related to future criminality. Id. Finding that the defendant’s condition of probation not allowing medical marijuana was related to the crime of which the defendant was convicted, the California Court of Appeals did not allow the defendant to use medical marijuana during his probationary sentence. These courts have stated in sum and substance that defendants with these types of convictions are not appropriate candidates for use of medical marijuana during their probationary sentences because of their potential risk for recidivism and increased risk of future drug abuse and criminality.The trial court has sole discretion in implementing probation as it deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist him to do so. People v. Griffith, 657 N.Y.S.2d 823, 825 (3d Dept 1997). In determining the appropriate probationary sentence, the court should give due consideration to the crime charges, the particular circumstances of the defendant, and the purpose of the penal sanction. Id. The court has wide latitude to require a defendant to satisfy any other conditions of probation that are reasonably related to the defendant’s rehabilitation. Penal Law §65.10(2)(I).In the case at bar, the Defendant’s underlying conviction is for a non-violent sexual offense. Unlike Friel, supra, and the similar cases outlined herein, the Defendant has no criminal history related to the use or possession of narcotics or firearms, or any offenses for driving while intoxicated or ability impaired by drugs. The Defendant is a qualifying patient of medical marijuana pursuant to New York Public Health Law, and has a valid prescription for medical marijuana from a licensed physician associated with the New York State Medical Marijuana Program. Prohibiting medical marijuana in this case would hardly serve any lawful and logical relation to the Defendant’s rehabilitation. Magyari, supra. In fact, the record reflects that should he be prohibited from using medical marijuana, the Defendant would need to rely on highly addictive prescription narcotics that significantly interfered with his ability to function on a daily basis to ease the symptoms of his conditions.As such, this Court finds that the Defendant’s conditions of probation may be amended to allow for the Defendant to use medical marijuana during his probationary sentence, so long as the Defendant maintains a valid prescription from a licensed physician associated with the New York State Medical Marijuana Program. Should the Defendant be found with any marijuana not legally prescribed to him, an amount of marijuana that is more than the prescribed dosage, or any other drug or narcotic substance not legally prescribed to him, such possession shall constitute a violation of his probation and the Defendant’s probation may be immediately revoked. The Defendant shall be required to comply with all other conditions of his probation, and shall be required to notify his Probation Officer within twenty-four (24) hours if there are any changes made to the Defendant’s medical marijuana prescription. Further, Defendant shall be prohibited from operating a motor vehicle during the pendency of his use of medical marijuana.Based on the foregoing, it is herebyORDERED that Defendant’s motion is granted; and it is furtherORDERED that this Court grants Defendant permission to use medical marijuana during his probation sentence so long as the Defendant maintains a valid prescription as prescribed by a qualified physician under the New York State Medical Marijuana Program and notifies his Probation Officer within twenty-four (24) hours of any changes thereto; and it is furtherORDERED that Defendant shall be prohibited from operating a motor vehicle at any time while using medical marijuana under a valid prescription as prescribed by a qualified physician under the New York State Medical Marijuana Program; and it is furtherORDERED that should the Defendant be found with any marijuana not legally prescribed to him or any other drug or narcotic substance not legally prescribed to him, such possession shall constitute a violation of his probation and the Defendant’s probation shall be immediately revoked.This shall constitute the Decision and Order of this Court.DATED: July 16, 2018Monticello, New York
