           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

717
KA 15-01479
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JESSE L. LEUBNER, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


PHIL MODRZYNSKI, BUFFALO, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered August 25, 2015. The judgment convicted
defendant, after a nonjury trial, of criminal possession of marihuana
in the second degree and growing of the plant known as Cannabis by
unlicensed persons.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the motion is granted, the indictment
is dismissed, and the matter is remitted to Cayuga County Court for
proceedings pursuant to CPL 470.45.

     Same memorandum as in People v Leubner ([appeal No. 1] ___ AD3d
___ [Oct. 7, 2016]).




Entered:    October 7, 2016                        Frances E. Cafarell
                                                   Clerk of the Court
