The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Term and dismissing the accusatory instrument, determined the accusatory instrument did not allege that the synthetic cannabinoid defendant was charged with possessing was a controlled substance pursuant to the Public Health Law:
Defendant … was charged with criminal possession of a controlled substance in the seventh degree for allegedly possessing an illegal synthetic cannabinoid. The Public Health Law’s controlled substance schedules criminalize possession of some, but not all, synthetic cannabinoids. Because the misdemeanor [complaint] to which defendant pleaded guilty failed to allege a sufficient factual basis to conclude that the substance defendant possessed was illegal, that count was facially deficient and should be dismissed. * * *
The Public Health Law’s statutory framework, which criminalizes only a subset of synthetic cannabinoids, renders it difficult for both the public and law enforcement alike to reasonably conclude whether a synthetic cannabinoid is a controlled substance without additional facts … . Given this particular statutory framework, the misdemeanor count in this accusatory instrument contains a fundamental defect because it does not sufficiently allege that defendant committed a crime. …
The instrument’s factual assertions gave no basis for concluding that the substance defendant possessed was a controlled substance; that is, an illegal synthetic cannabinoid as listed with precision in Public Health Law § 3306 (g), as opposed to one of the many synthetic cannabinoid substances that are not criminalized in the schedule. People v Ron Hill, 2022 NY Slip Op 03930, CtApp 6-16-22
Practice Point: There are many synthetic cannabinoids in addition to those designated controlled substances by the Public Health Law. Here the misdemeanor complaint did not allege enough facts to determine whether the synthetic cannabinoid allegedly possessed by the defendant was on the Public-Health-Law list. The complaint was therefore facially deficient.