Opinion
Index No. CR-00109-22
01-30-2023
The People of the State of New York, v. Logan M. Dalrymple, Defendant.
The People by Christopher Curley, Esq./Michael D. Ferrarese, Esq. Defendant by Brett C. Cowen, Esq.
The People by Christopher Curley, Esq./Michael D. Ferrarese, Esq.
Defendant by Brett C. Cowen, Esq.
Michael J. Genute, J.
BACKGROUND
By felony complaint dated February 8, 2022, the principal was charged with Criminal Possession of a Controlled Substance in the Third Degree, a violation of PL § 220.16(1), for allegedly possessing the following in her purse:
A clear plastic baggy containing 30 individual baggies, packaged in three, nine baggy bundles, as well as 3 loose baggies, each containing a white powdery substance, that had a total field test weight of 11 grams or.388 ounces.
The felony complaint otherwise alleged that the "substance did NIK test() positive for Heroin." The Court signed an arrest warrant on February 28, 2022, and the principal was arraigned on March 9, 2022 and released on her own recognizance.
The People subsequently filed a prosecutor's information, dated July 7, 2022, and received by the Court on July 11, charging the defendant with Criminal Possession of a Control Substance in the Seventh Degree for allegedly possessing Heroin. The principal was arraigned on this charge on August 4, 2022.
Following several conferences, the defense has filed a motion, dated November 16, 2022, seeking that the prosecutor's information be dismissed on the basis that "there exists in this matter a 'legal' impediment to conviction... that precludes a finding of guilt as a matter of law." In so doing, the defendant cited People v. Williams, 57 Misc.3d 370, 378 (NY City Ct. 2017). The principal's argument is that the police made contact with the principal as a result of a "welfare check complaint," and that PL § 220.78(2) prohibits the charging or prosecuting of the principal under the circumstances of this case.
The People's opposition, dated November 21, argues that the "(principal) was not "the subject of... a good faith request for health care" and can thus be properly charged with controlled substance offenses." (internal quotations omitted). According to the People, "this case involves a call for service for a check on the welfare of someone who was acting bizarrely, but did not appear to be suffering from an overdose or other life threatening medical emergency."
The defense submitted an Affirmation in Response, dated December 7 and marked received by the Court on December 8, asking the Court to disregard conversations between the prosecutor and police officers, which the People referenced in their opposition. The defense otherwise asks the Court to disregard the People's argument that the responding police officers did not take emergency life saving measures towards the principal, such as using Narcan on her, as her overdose was the result of methamphetamine which would have proven the Narcan ineffective.
Facts
The facts are fairly clear and not in dispute. The principal was sitting alone on the front steps of a residence or apartment building when a passerby made a 911 call based upon his perception that the principal was in some sort of distress, and he hoped to offer some type of assistance for her.
The responding officers noted that she was just sitting on the front steps, appearing disheveled and to have vomit on her. Upon further inquiry, where she did not provide her name, the principal consented to a search of her purse and admitted that she was under the influence of meth or heroin. As she was having a hard time standing up, the responding officers contacted the local fire department with emergency medical services (EMS). It was determined that she should be transported to the local hospital.
Based upon a careful review of the 911 call submitted by the People, the identified caller reported the following:
23 Pleasant Street, Norwich... I don't live here, but there is a lady in distress here out in front of the house... she won't communicate with me... she sort of fell down the stairs... she's sitting on the stairs... I don't know what to do for her... I was just sort of passing by here... there doesn't seem to be anybody home at the place she's at...
The caller otherwise replied that she was alone.
Both the defense and the People submitted the same police report/narrative in support of their respective positions. While those reports are clearly hearsay, the Court has considered the content of the notes in light of both parties submitting and relying on them in their arguments. The police reports to which each side draws attention provide as follows:
Upon arrival, officers spoke with (the 911 caller) who was standing on the sidewalk next to a female sitting on a porch with her head down I then went and attempted to speak with the female, who was sitting on the porch steps of 23 Pleasant Street with her hand together and her head down. The female appeared to have vomit on herself and her hair was very messy. The female appeared that she may be under the influence of a controlled substance. We then attempted to get the female's name, but she would not give it to us. PO Stratton then asked for permission to look in her purse for her ID, which she did grant him. Through this. PO Stratton was able to find her ID and identify her as Logan Dalrymple.
While speaking with Logan, I asked her if she was under the influence of Meth or Heroin, which she replied by just saying "mmmm". Due to not knowing what Logan was under the influence of, I then asked if I could search her bag, in an effort to determine what in fact she is under the influence of. Upon asking, Logan replied "uhh huhh". I then searched the bag...
PO Stratton then attempted to get Logan to stand up to go to the hospital, which she appeared to have a hard time. I then called for NFD (Norwich Fire Department) to respond to the scene. NFD then responded and determined that Logan needed to be transported to CMH (Chenango Memorial Hospital). I then road in the ambulance with NFD to CMH... where Logan was brough into the ER without incident. Upon leaving CMH, Officers were then called back due to hospital staff (sic) of finding more drugs
DISCUSSION
THE PRINCIPAL CAN BE CHARGED AND PROSECUTED FOR VIOLATING PL § 220.03 AS SHE WAS NOT EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR OTHER LIFE THREATENING MEDICAL EMERGENCY AND THE INDIVIDUAL CALLING 911 DID NOT REQUEST EMERGENT HEALTH CARE FOR THE PRINCIPAL
According to PL § 220.78(1),
A person who, in good faith, seeks health care for someone who is experiencing a drug or alcohol overdose or other life threatening medical emergency shall not be charged or prosecuted for a controlled substance offense under this articleMore important to the matter at bar, PL § 220.78(2) provides that,
A person who is experiencing a drug or alcohol overdose or other life threatening medical emergency and, in good faith, seeks health care for himself or herself or is the subject of such a good faith request for health care, shall not be charged or prosecuted for a controlled substance offense under this article... with respect to any substance... that was obtained as a result of such seeking or receiving of health care.
PL §220.78(3) further provides the following definitions:
(a) "Drug or alcohol overdose" or "overdose" means an acute condition including, but not limited to, physical illness, coma, mania, hysteria or death, which is the result of consumption or use of a controlled substance or alcohol and relates to an adverse reaction to or the quantity of the controlled substance or alcohol or a substance with which the controlled substance or alcohol was combined; provided that a patient's condition shall be deemed to be a drug or alcohol overdose if a prudent layperson, possessing an average knowledge of medicine and health, could reasonably believe that the condition is in fact a drug or alcohol overdose and (except as to death) requires health care.
(b) "Health care" means the professional services provided to a person experiencing a drug or alcohol overdose by a health care professional licensed, registered or certified... acting within his or her lawful scope of practice, may provide diagnosis, treatment or emergency services for a person experiencing a drug or alcohol overdose.
There is very little case law addressing this statute, let alone one that provides guidance on the issue now faced by the Court. The principal cites to Williams, which has some similarities to the matter at bar, such as the following:
• The principal was charged with CPCS7th (220.03),
• The drugs were recovered by the police in response to a call, although the decision in Williams does not provide details about the call.
The clear differences between the two cases are as follows:
• The principal in Williams was found "unconscious and unresponsive," whereas the principal in the matter at bar could best be described as being disheveled, as she found sitting up, with her head down, hands together, and to have vomit on herself.
• The principal in Williams was administered two doses of Narcan by the responding police, and the principal in the matter at bar did not require any life-saving measures.
• The People in Williams acknowledged that the initial call was made for medical assistance, whereas the People in this case argue that the call was to "check on the welfare of someone who was acting bizarrely, but did not appear to be suffering from an overdose or other life threatening medical emergency."
The defense posits that the principal was in obvious distress when police officers arrived on the scene pursuant to the welfare check. In this regard, it asserts that "law enforcement attempted to interview the principal but she needed immediate medical care." Finally, it submits that the principal was subsequently "transported to Chenango Memorial Hospital to receive medical treatment and (was) stabilize(d)."
The People assert that when police responded to the welfare check 911 call that "a woman was sitting on the porch and acting strange." The People further assert that the 911 caller reported that the woman was "in distress," at the specific address.
The People also argue that the principal was found by the responding officers "appear(ing) disheveled and appeared to have vomited on herself." Also noted is that the principal was "initially uncommunicative." Based on the argument submitted, the People posit that the "responding officers believed that the defendant may be under the influence of a controlled substance." This led them, the People submit, to request permission to search the principal's purse, with the principal providing consent, and the officers finding drugs therein before calling EMS to evaluate the principal.
Finally, the People argue that the officers "thought that the (principal) was under the influence of a controlled substance and called EMS to respond and evaluate her, the police officers clearly did not believe (the principal) was overdosing or undergoing a life-threatening medical emergency." The People additionally submit that "the officers did not observe any outward indicia that the defendant was overdosing, nor did they administer Narcan."
While the defense acknowledges the nature of the call as being one "for assistance and a welfare check", it argues that the principal was in "obvious distress" and that "(l)aw enforcement attempted to interview the principal but she needed immediate medical care" resulting in her transport to Chenango Memorial Hospital to receive medical treatment and stabilize.
In their affirmation in response to the People's opposition, the defense suggests that the principal was under the influence of methamphetamine and that any attempts to use Narcan on her would have been futile. Problematic in this approach, however, is that there is nothing in the submissions to confirm that the principal was under the influence of methamphetamine, heroin, or something else. According to the narrative in the report, the officer asked the principal if she was under the influence of Meth or Heroin. The principal replied by murmuring "mmmm." The submitted report indicates that the principal possessed heroin, which was packaged in her purse and found by the responding police officers, and a jar of meth in her bra, which was discovered by hospital staff after she had been transported to the hospital. And the principal makes no admissions in this regard.
While the People argue about the nature of the 911 call, it is relevant to note that they also draw much attention to the principal's condition when the police first responded to her. Namely, the People seem to argue that there is an additional prong to the analysis - whether the principal was in fact suffering from an overdose or other life-threatening emergency. Not only does there have to be a call for health care, which the People still contest, but the People seem to argue that there actually has to be a medical emergency.
Interestingly, the court in Williams specifically noted that, "(t)he undisputed facts developed throughout this proceeding establish that the drugs were recovered from the defendant during a medical emergency and in response to a call for medical assistance." 61 N.Y.S.3d 460, 466 (The Williams decision emphasizing "and"). Therefore, the Court observed, "she may not be convicted of the offenses of criminal possession of a controlled substance in the seventh degree." By this language, one could infer that the court in Williams would agree with the People; that there needs to be the additional component of a medical emergency to bar prosecution. Of course, it is also possible that the court in Williams simply noted the medical emergency because there actually was one, supporting its finding that the call was one made in good faith.
While Williams is not controlling, it offers persuasive authority, which can be accepted or rejected by this Court. With that, the initial question the Court must decide in applying the statue is:
• Whether or not the call was one made in good faith to request health care for one reasonably perceived by the caller to be "experiencing a drug or alcohol overdose or other life-threatening medical emergency," or
• Whether the call was one made in good faith to request health care and that the principal was in fact experiencing an overdose or other life threatening emergency, or
• Whether the caller has a good faith belief that there was an overdose or life threatening emergency and that the subject of the call actually is experiencing the same, or
• Some variation of the above.
From an initial review of the statue, the Court's perception was that the caller for medical services would have to believe there was an overdose or life threatening emergency to trigger the application of the statute. The Court also questions the meaning of "good faith," which is read by the Court to mean that the caller truly perceives a need for medical intervention, whether the caller is the subject of a potential overdose or life threatening emergency or a witness to someone experiencing the same, and that the caller is not making the call merely to shirk some potential criminal liability. Ultimately, the drafting of the statute offers a fair amount of ambiguity in this regard, especially when faced with the unique circumstances of this case.
From a concise reading of the statute, the Court finds that that the additional component that the principal actually be or at least be perceived to be undergoing an overdose or life-threatening emergency is necessary, and that the initial call be one made with a good-faith belief that the subject requires emergent health care. Following its reference to "(a) person who is experiencing a(n) overdose or other life-threatening medical emergency", the drafters added the word "and", which is followed by the requirement that a "good faith request for health care" be made. While one may in good faith make a phone call for someone appearing to require emergent health care, the statute also requires that the subject of the call be objectively suffering from an overdose or life threatening medical emergency. See, William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 220.78 .
As to the circumstances of the case, the Court initially finds that, without a doubt, the 911 call was one that made in good faith. The caller was a passerby completely unaffiliated with the principal and was merely concerned with her appearance, prompting his call to 911.
Whether or not the call was one made to request emergent health care is another issue. Having carefully scrutinized the 911 call, the Court notes that at no time during the call does the caller state that there is an emergency, let alone a life-threatening or even medical one. In fact, the caller does not even assert or proclaim that the principal required medical assistance. While the defense decries the position that "magic words" are necessary when making a 911 call, the Court disagrees with that position, as there should be some indicia in the call that the caller perceived some level of emergent need for health care. The only point at which this could even be inferred is when the caller states that "there is a lady in distress here..." Moreso, the caller sounding concerned but not panicked or hurried, subsequently states, "I don't know what to do for her... I was just sort of passing by here."
Interestingly, there is no legal definition of "distress." See, Universal C.I.T. Credit Corp. v. Horton, 38 N.Y.S.2d 655, 657 (Sup. Ct. 1942). However, through common law courts have distinguished between levels of distress by requiring emotional distress be extreme in order to state a cause of action in tort for such an injury. See, Fischer v. Maloney, 373 N.E.2d 1215, 1217 (NY 1978). Additionally, the Merriam-Webster definition for distress is, "pain or suffering affecting the body, a bodily part, or the mind: 'trouble'."
With all of that, the Court returns to the 911 call, where the caller remarks that the principal is in distress, but does not designate that the distress is serious or severe. While the caller states that the principal "fell down the stairs," he abruptly changes course without completing the sentence by stating that the principal is "sitting on the stairs." Other than the fact that the principal is not communicating with the caller and appears to be alone, there are no other remarks made by the caller to suggest that he views the principal as experiencing a life-threatening emergency or overdose or that he is otherwise calling to specifically seek emergent medical assistance for her.
The statements from the caller could suggest any number of circumstances, including that the principal was drunk, simply high, hung-over, depressed, or simply ill, mentally or physically. While the caller clearly expresses concern about the principal's well-being, he states nothing to indicate that there was a clear need for medical intervention of any kind. As the People argue and even the defense acknowledges to some degree, this type of call is more akin to a general welfare complaint or concern than a call regarding an overdose or other life-threatening medical emergency. Ultimately, the Court finds that the call was made out of concern for the principal's well-being, but not specifically made with a good-faith belief that the principal required emergent health care.
Even if the 911 call were to be one seeking medical assistance, the Court would still find in favor of the People, as the principal was not experiencing an overdose or life-threatening medical emergency. It is clear that neither the 911 caller or the police believed that the principal was suffering from an overdose or life threatening medical emergency. The caller's remarks did not suggest this to be the case, and the defense does not dispute the narrative of the responding and reporting police officer, who found the principal appearing disheveled, "sitting on a porch with her head down," and who had "appeared to have vomit on herself." The principal was able to communicate that she was under the influence of meth or heroin, gave consent to her purse being searched for the purposes of being identified and for the officers to determine what substances may have been affecting her. The officers called the fire department with EMS to respond to the scene, which seems to have been prompted by the principal having a hard time standing up. While the EMS responders determined that the principal needed to be transported to the hospital, there was nothing to suggest it was as a result of an overdose or life threatening medical emergency, as opposed to simply be evaluated as a precautionary measure.
Additionally, the defense points out that the statute was enacted to "encourage people to seek medical care for themselves and others in an emergency situation." The Court is in full agreement with this statement.
In 2011, the Legislature set about "to encourage a witness or victim of a drug or alcohol related overdose to call 911 or seek other emergency assistance in order to save the life of an overdose victim." (citing, L. 2011, c. 154, § 1 [Legislative intent]). As the Governor explained: "accidental drug overdose is the fourth leading cause of death among adults in New York. Approximately 85% of overdose events occur in the company of others, but no medical assistance was sought in half of those cases and in only 14% of cases was calling an ambulance the first response to a peer's overdose." (citing, 2011 Governor's Approval Memorandum 4). The legislators sought to accomplish their objective by exempting the "witness" (hereinafter, "Good Samaritan") and the victim of the overdose from liability for certain drug and alcohol related crimes. (citing, 2011 Governor's Approval Memorandum 4).William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 220.78
Noting the Practice Comments in the statute, not to mention an obvious understanding of the statute's intent, it is rather clear that the legislature intended those involved in the use of illegal substances not to be deterred to call for emergency assistance for someone overdosing or suffering a life-threatening emergency out of fear of their own or another's potential for facing criminal charges. With that said, the caller in this case does not appear to be in the class of anticipated or protected callers considered when enacting the statute. There is certainly nothing to suggest that he would have been deterred from making the call out of fear of prosecution of himself or the principal had the statute not been in place. He was the true definition of a "Good Samaritan," merely checking on someone who appeared to be in some sort of distress, but who, by the caller's own responses, did not appear to be suffering from an overdose or life threatening emergency. As there is no dispute as to the underlying facts of this case, it is clear that the overdose exclusion to prosecution pursuant to PL § 220.78 does not apply to this case.
DECISION
For all of the foregoing reasons, the defense's motion to dismiss the Information filed on July 11, 2022, and charging the defendant with violating PL § 220.03 is hereby denied.