
    The People of the State of New York, Plaintiff, v. Willie Gray, Defendant.
    District Court of Nassau County, First District,
    December 24, 1971.
    
      William Calm, District Attorney (Robert Schmidt of counsel), for plaintiff. James J. McDonough and Kenneth L. Ross for defendant.
   Johk S. Locemah, J.

At a trial of a defendant charged with violating section 220.45 of the Penal Law (knowingly and unlawfully possessing hypodermic needles and syringes) there was no testimony concerning whether the defendant had a prescription. The defense moved to dismiss because ‘ ‘ unlawful ’ ’ possession had not been proven.

The definition “ unlawful” is set forth in section 220.00 of the Penal Law which provides: “6. 1 Unlawfully ’ means in violation of article thirty-three, article thirty-three-A or article thirty-three-B of the public health law or section two hundred twenty-nine of the mental hygiene law.”

Section 3354 of article 33 of the Public Health Law states: “Violations; penalties.—

“1. In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this article, it shall not be necessary to negate or disprove any exception, excuse, proviso or exemption contained in this article, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.”

The only case research has uncovered is People v. Saul (12 Mise 2d 356) which held that the defendant had the burden of presenting evidence of a prescription.

Motion to dismiss denied.  