The New York State Court of Appeals dealt a blow to a controversial but popular tactic in marijuana enforcement last week (10/22) when it ruled that people arrested in reverse sting or "sell and bust" operations cannot be charged with criminal solicitation.
Police, who are forbidden from selling actual marijuana, generally use a substitute such as oregano when posing as dealers to arrest unsuspecting buyers. That eliminates the possibility of charging them with possession. And because there is no official penalty for "attempted possession" of marijuana, police had been charging arrestees with criminal solicitation. The court ruled, however, that the New York Penal Code stipulates that "a person is not guilty of solicitation when that solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited."
This language exists to insure that a person cannot be charged both with a crime and additionally with an act that is necessarily subsumed by the first charge. 54 defendants who had been so charged for their efforts to buy small quantities of marijuana from undercover officers had their cases dismissed.
Thomas Morse, the Assistant District Attorney in this case, insisted that the legal loophole would be closed and that it would soon be a crime in New York to "attempt to possess" marijuana. He told The New York Times, "We're going to move the halls of justice to the corridors of the Legislature. We hope to find a sponsor in the next session."