RULING ENDS SOME MARIJUANA STING OPERATIONS

In a ruling that will limit the way police
departments conduct some sting operations involving marijuana, the
State Court of Appeals in Albany, N.Y., Thursday reversed a Monroe
County Court decision that allowed people who believed they were
buying marijuana to be charged with criminal solicitation.

The case involved 54 defendants who bought small amounts of what they
believed to be marijuana, but which was actually oregano, from police
officers in Rochester, N.Y., who were acting as drug sellers. Because
undercover officers are not allowed to sell real marijuana, the buyers
could not be charged with possession of marijuana, a violation that
carries a maximum fine of $100. Instead, they were charged with
criminal solicitation, which carries a maximum sentence of 15 days in
jail. The Court of Appeals ruled that they could not be charged with
criminal solicitation because of an exemption in the penal code that
states "a person is not guilty of criminal solicitation when his
solicitation constitutes conduct of a kind that is necessarily
incidental to the commission of the crime solicited."

David Steinberg, chief assistant public defender in Dutchess County,
said, "Basically it's a legal exemption, a defense to a charge of
criminal solicitation, when the conduct complained of is part and
parcel to the commission of the crime that is being solicited."
Steinberg is now appealing a criminal solicitation conviction in a
reverse sting case in which his client tried to buy crack cocaine from
an undercover officer in July 1997. Thursday's ruling spells an end to
reverse sting operations involving marijuana, according to Thomas
Rainbow Morse, an assistant district attorney who represented the
state, but not to all reverse sting drug operations. Other drugs carry
higher penalties than marijuana.

Although cocaine buyers may no longer be charged with criminal
solicitation, they can be charged with attempted possession of cocaine.

"Attempted possession of marijuana is not an offense," said Edward
Nowak, the Monroe County public defender, who represented the 54
defendants. Morse said he was not giving up and that he hoped to
change the criminal solicitation statute. "We're going to move the
halls of justice to the corridors of the Legislature," he said. "We
hope to find a sponsor in the next session of the Legislature."

Checked-by: Patrick Henry