DECISION AND ORDER This court rendered a decision dated May 16, 2023, finding the Grand Jury minutes sufficient. On June 2, 2023, the People filed a letter to Defense Counsel with the court citing legal authority, including People v. Houston, 72 AD2d 369 (2nd Dept. 1980), that the letter itself acknowledges could be interpreted adversely to the viability of the instant prosecution. The Defendant filed a motion to re-argue on June 21, 2023. The People filed opposition on July 14, 2023. MOTION TO REARGUE AND RENEW The three-part standard for a motion for leave to reargue is set forth in CPLR Rule 2221(d): A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. TIMELINESS The defendant filed the instant motion approximately thirty-five days after receipt of the court’s initial decision. The court finds good cause to consider the defendant’s motion because it is being made in response to the letter from the People advising the defendant of the law adverse to the People’s position, which was sent on June 2, 2023. The defendant’s motion to reargue was filed within thirty days of that letter, therefore it is timely. OVERLOOKED MATTERS OF LAW A motion for leave to reargue pursuant to CPLR §2221 (d)(2) is addressed to the sound discretion of the court (Grimm v. Bailey, 105 AD3d 703, 704 [2d Dept 2013]; People v. Rodriguez, 21 AD3d 838 [1st Dept 2005]; People v. Harrington, 193 AD2d 756 [2d Dept 1993]). It must “be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact or law not offered on the prior motion” (CPLR §2221 [d] [2]); People v. D’Alessandro, 13 NY3d 216, 219 [2009]). Thus, “[a] motion for leave to reargue ‘is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented’” (Haque v. Daddazio, 84 AD3d 940, 942 [2d Dept 2011], quoting Mazinov v. Rella, 79 AD3d 979, 980 [2d Dept 2010]). The New York State Legislature enacted the Marihuana Regulation and Taxation Act (MRTA) on March 31, 2021. The law legalized and regulated adult-use cannabis. It also partially repealed Penal Law §221, which had criminalized the possession of marihuana, and replaced it with PL §222, which also criminalizes the possession of marihuana/cannabis in some instances and largely mirrors the structure of its predecessor statute, PL §221. Critically, PL §222 does not use the “aggregate weight” standard for measuring the quantity of marihuana in a defendant’s possession. Where the now-defunct PL §221.30 (Criminal Possession of Marihuana in the First Degree) criminalized the possession of substances containing marihuana in an aggregate weight of more than ten pounds, PL §222.40 (Criminal Possession of Cannabis in the First Degree), the criminal statute under which the defendant was indicted, simply criminalizes the possession of cannabis weighing more than ten pounds. This is not the first time the New York legislature has switched from an “aggregate weight” standard to a “pure weight” standard for quantifying marihuana or cannabis. In 1977, the Marihuana Reform Act took effect, which was designed to drastically reduce the penalties for marihuana consumption. See Houston, supra, at 374. One of the changes of the 1977 Act was to require that “the marijuana content in of itself in any mixture” weigh a certain amount, as opposed to using the aggregate weight of the substance containing marihuana. Id. The impact of this change was substantial, as it became “impossible to prosecute [possessory] cannabis offenses because laboratories did not at that time, and still do not, have the technical ability to measure cannabis in pure weight.” People’s Opposition to the Defendant’s Motion to Reargue, page 6 (citing an observation made by the Houston court). Nonetheless, even as they acknowledged the impossibility of the task, the Second Department in Houston held that the People could not sustain their burden of proof as to the weight of the marihuana possessed by the defendant unless they could show the “pure” weight of the marihuana within the mass of matter at issue. See id. at 384. Houston does not represent an isolated incident. In People v. Turdo, 74 A.D.2d 614 (2nd Dept. 1980), the Second Department held that a grand jury presentation was insufficient where the only evidence as to the weight of the marihuana was aggregate weight, noting that the weight of a mixture containing marijuana did not establish the quantity of “pure” marihuana sufficient to sustain the charge. Id. at 615. The Turdo court noted that the legislature subsequently amended the Marihuana Reform Act to revert to the “aggregate weight” standard in 1979, and it isn’t difficult to see why: Prosecuting marihuana possession based on pure weight had proven unfeasible. See id. With the enactment of the MRTA in 2021, the legislature has swung the pendulum back from an aggregate weight standard to a pure weight standard. The People argue that this decision makes PL §222.40 unenforceable, and that as a result, the Court is compelled to interpret the statute in a way so as to make it enforceable. There are two issues with this approach: First, the People offer no alternative to the “aggregate weight” basis for determining the weight of the cannabis possessed by the defendant, even though the legislature clearly moved away from aggregate weight with the passage of the MRTA. Second, the Second Department has ruled on the In this case, the only evidence as to the weight of the cannabis allegedly possessed by the defendant came in the form of a NYPD laboratory report which listed the “aggregate weight” of the cannabis possessed by the defendant to be over ten pounds. There is no measurement of the pure weight of the cannabis provided by the report, or by any other evidence that was before the Grand Jury. Accordingly, there was not enough credible evidence before the Grand Jury to establish reasonable cause that the defendant possessed more than ten pounds of cannabis, and the indictment must be dismissed, with leave to re-present (People v. Pelchat, 62 NY2d 97 [1984]; People v. Calbud, Inc., et al., 49 NY2d 389 [1980]; People v. Swamp, 84 NY2d 725 [1995]). Accordingly, it is hereby: ORDERED, that the defendant’s motion to reargue is granted; and it is further ORDERED, that the indictment is dismissed, with leave to re-present. This matter is next on August 4, 2023, in TAP-2. The foregoing constitutes the decision and order of the court. Dated: July 17, 2023
