POINT I

THE PEOPLE FAILED TO PROVE PRIMA
FACIE OR BEYOND A REASONABLE DOUBT
THAT APPELLANT LANCLOS VIOLATED
PENAL LAW, section 1751, subd. 2.

Penal Law, section 1751, subd. 2, required that the People

prove that Lanclos possessed or had the packets of marijuana under his

control, with intent to barter or exchange with, or to sell or give to

19. Section 1751. Violations of the public health law with

respect to narcotic drugs

2. Any person who shall possess or have under his control any narcotic drug, as defined in the public health law, with intent to barter or exchange with, or to sell or give to another the same or any part thereof, or to aid, abet, or directly or indirectly counsel, command, induce or procure the barter or exchange with or the sale or gift to another of the same or any part thereof, in violation of any section of article thirty-three of the public health law, shall be punishable by imprisonment for an indeterminate term the minimum of which shall be no less than five years and the maximum of which shall be not more than fifteen years.

Such intent is presumptively established by proof that the person knowingly possessed or had under his control, in violation of any section of article thirty-three of the public health law, one hundred or more cigarettes containing cannabis, or one or more preparations, compounds, mixtures or substances of an aggregate weight of (a) one or more ounces, containing one per centum or more of the respective alkaloids or salts of heroin, morphine or cocaine; or (b) one or more ounces, containing any cannabis; or (c) two or more ounces, containing raw or prepared opium; or (d) two or more ounces containing one or more than one of any of the other narcotic drugs as defined in the public health law. In determining said weight, avoirdupois ounces shall be used for solids or semi-solids and fluid ounces for liquids. This presumption may be rebutted.

Under this subdivision, such intent can be presumptively established

by proof that Lanclos "knowingly possessed or had under his control"

marijuana.

Section 3, subd. 4, of the Penal Law indicates that the People must establish that Lanclos knew that the packets contained marijuana.

This section defines "knowingly" as follows:

"4.

The term 'knowingly' imports a knowledge
that the facts exist which constitute the
act or omission a crime, and does not
require knowledge of the unlawfulness of
the act or omission;"

In People v. Moore, 142 App. Div. 402, 127 N. Y. S. 98

(1st Dept. 1911), affirmed no opinion 201 N. Y. 570 (1911), this Court stated, in a decision affirmed by the Court of Appeals, that

"knowingly" in Penal Law, section 2460, subd. 4 (Consol. Laws,

chap. 40; Laws of 1909, chap. 88) signifies guilty knowledge.

The subdivision states:

"14.

Every person who shall knowingly receive
any money or other valuable thing for or
on account of procuring and placing in the
custody of another person for immoral
purposes any woman, with or without her
consent, is punishable by imprisonment
not exceeding five years and a fine not
exceeding one thousand dollars. "

In People v. McHugh, 271 App. Div. 135, 140 (3rd Dept.

1946), the Appellate Division, Third Department, construed

"knowingly" in Penal Law, section 1865, subd. 2, as requiring guilty