Adds additional objects which a person would be guilty of criminally using drug paraphernalia in the 2nd degree if he or she knowingly possesses or sells such object

BILL NUMBER:S494

Title of bill

An act to amend the penal law, in relation to criminally using drug paraphernalia in the second degree

Purpose

To make it a crime to knowingly possess or sell drug paraphernalia for the purpose of using an illegal controlled substance or knowing that another person intends to use an illegal controlled substance, even though no trace of a controlled substance exists at the time the drug paraphernalia is found.

Summary of provisions

Amends Section 220.50 of the penal law by adding a new subdivision to include within the crime of criminally using drug paraphernalia in the second degree, a class A misdemeanor, the knowing possession or sale of objects including, but not limited to: pipes with or without screens, glass tubing, pipe screens, steel wool, or miniature spoons, capable for use in ingesting, inhaling or otherwise introducing into the human body, a controlled substance, possession of which is unlawful under this chapter, under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use the same, unlawfully.

Justification

Section 220.50 of the Penal Law currently criminalizes items used to package and prepare controlled substances (e.g., vials, capsules, scales, balances). The statute recognizes the various means utilized to retail controlled substances and provides an additional method whereby those engaged in such illegal activity may be held accountable even if there is no additional evidence of possession or sale of a controlled substance at the time the drug paraphernalia is found. The paraphernalia used to actually take the illegal drug should be no exception.

Under current law, possessing drug paraphernalia such as a crack pipe is only illegal if controlled substance residue is found on the item and is punishable by the crime of criminal possession of a controlled substance in the seventh degree.

Items such as miniature spoons, glass tubing and steel wool, either alone or in combination, are commonly used as drug paraphernalia. A "Rose Tube," sold in many convenience stores and often displayed brazenly at the front counter, is glass tubing containing a novelty item such as a miniature rose. Although marketed as a novelty gift item, it is commonly used as a crack cocaine pipe. Drug users remove the rose, insert a piece of wiry sponge or a scouring pad as a filter, and use it to smoke crack cocaine.

This bill criminalizes the knowing possession or sale of such drug paraphernalia for the purpose of using an illegal controlled substance or knowing that another person intends to use an illegal

controlled substance, even though no trace of a controlled substance exists at the time the drug paraphernalia is found.

Since so-called drug paraphernalia may have legitimate uses and therefore possession of such items, per se, cannot be made criminal, the bill defines the crime to include both possession of the paraphernalia and a culpable mental state which, if proved, precludes the possibility of innocent possession of the paraphernalia.

Legislative history

2008 Referred to Codes

Fiscal implications

None.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.