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MS patient denied request to dismiss pot-growing case

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  1. chillinwill
    Charges highlight medical marijuana issue

    A Superior Court judge refused this week to dismiss the charges against a Somerset County man accused of growing 17 marijuana plants at his home.

    John Ray Wilson, 36, suffers from multiple sclerosis, his attorney said, and he uses the drug to alleviate his symptoms.

    The state has accused the Franklin Township man of first-degree maintaining or operating a drug production facility, second-degree manufacturing and third-degree drug possession. If convicted, he faces up to 20 years in prison.

    But defense attorney James Wronko said Wilson is not the type of defendant the law against production facilities is meant to target.

    Wilson's case is working its way through the courts as advocates are urging state legislators to legalize the drug for medicinal purposes. The New Jersey Compassionate Use Medical Marijuana Act would give patients of debilitating diseases structured access to the drug.

    Wilson's predicament is what families of chronically ill patients dread, said Roseanne Scotti, director of the Drug Policy Alliance of New Jersey, a major proponent of the bill the Senate passed last month.

    "These families and these patients are living under a terrible cloud and a constant fear of being arrested and the collateral consequences of having a drug arrest," Scotti said.

    "Mr. Wilson's case is interesting because it's probably the only one that's come to light where you had a medical marijuana patient getting charged," Scotti said.

    "If they're not saying he was distributing, they're not saying he was selling. He was not profiting," Scotti said. Sending him away for 20 years, "for any years, would be appalling," she said.

    Wilson is not accused of selling the substance, but he is accused of cultivating more than 10 plants, some of them up to 6-feet tall, behind the dwelling he rented on Skillmans Lane, according to the state Attorney General's Office. A helicopter pilot spotted them from the air on Aug. 18, the state says.

    Police searched the tall weeds in the backyard and found the marijuana plants growing along well-worn trails, according to court papers. Authorities also found a container of Miracle-Gro in a shed and psilocybin mushrooms and bags of processed marijuana inside the dwelling.

    On Monday, Wilson, Wronko and Deputy Attorney General Russell Curley appeared before Superior Court Judge Robert Reed in Somerville to argue over a motion to dismiss the first- and second-degree counts.

    Wronko said the production facility charge as applied to his client is unconstitutionally vague. According to the state, "anyone who grows 10 or more marijuana plants, regardless of the circumstances, can be charged with maintaining or operating a marijuana production facility," Wronko said in court papers.

    "The Legislature could not have intended to apply the production facility law, a first-degree offense, to individuals who grow 17 plants, on one occasion, scattered in an area of weeds, for personal use and not distribution," Wronko wrote.

    For a person to be convicted of maintaining a facility that manufactures drugs, there has to be some continuity of use, but the state failed to show such evidence to the grand jury, Wronko said. The state also failed to demonstrate that the plants were not for Wilson's personal use.

    Curley said the state doesn't have to prove Wilson was cultivating the marijuana for himself. Anyone who operates a drug production facility is guilty "regardless of whether the marijuana is produced for distribution or personal use," he wrote in court papers.

    The deputy attorney general said the statute is not vague as the defense claims.

    "The statute is crystal clear; it criminalizes growing over 10 marijuana plants. Clearly, defendant's conduct violated the statute," Curley wrote. In his refusal to dismiss, Reed said the state gave the grand jury enough evidence to show that Wilson used the site repeatedly for manufacturing. The plants were mature and well-worn paths led to them.

    "A reasonable jury could infer that defendant had cultivated the plants over a period of time," Reed wrote.

    The judge said the state was not required to provide evidence the drugs were not for Wilson's personal use.

    Production includes the manufacture, planting, cultivation, growing or harvesting of a controlled dangerous substance, he said. "The language of the statute is clear; there is no personal use exemption for 'cultivation' of marijuana," Reed wrote.

    After Monday's appearance, Wilson went to the hospital for flare-up of his illness. His lawyer said it was undecided if they would file an appeal.

    BY JENNIFER GOLSON
    Star-Ledger
    March 12, 2009
    http://www.nj.com/news/ledger/somerset/index.ssf?/base/news-4/1236831977207460.xml&coll=1

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