BILL NUMBER:S6172

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 chap-
ter, under circumstances evincing an intent to use, or under circum-
stances 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 brazen-
ly 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 there-
fore 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.