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Is an Arrest for NY PL 220.03 or NY PL 221.01 Sufficient if the Police Fail to Base Their Conclusion on Training & Experience

Drug arrests for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03, may come in the form of a Desk Appearance Ticket (DAT) or a full 24 hour processing through the system. No matter how you were arrested, however, there are certain mandatory requirements that must be within the four corners of any criminal court complaint. Similar to arrests for marijuana, NY PL 220.03 arrests in Manhattan, Brooklyn, Queens, or any other county in New York City or New York State, involve the possession of certain “banned” drugs such as cocaine, heroin, ecstasy and other narcotics. Irrespective of that controlled substance, in order for prosecutors and Assistant District Attorney’s to have a viable and legal complaint against you, language in that complaint (actually called an “information” once it is legally sufficient), must reflect “proof” that the drugs in questions are in fact drugs. Anyone can merely guess based on appearance or smell, but the law requires more than mere speculation.

The law involving drug possession crimes (whether NY PL 220.03 for controlled substance or NY PL 221.10 for marijuana) definitely favors the prosecution. Years ago, before People v. Kalin, 12 NY3d 225 (2009), courts required that a laboratory analysis or field test be filed with a criminal court complaint in order to remove any legal impediments preventing the prosecution from proceeding with criminal charges. In other words, if prosecutors failed to provide a lab report or field test confirming the presence of heroin, cocaine, ecstasy or marijuana, a defendant would ultimately be able to obtain a procedural dismissal of the charges. As noted above, Kalin altered this rule by permitting the police, when drafting a complaint or signing off on its accuracy, to assert that the drug or marijuana recovered was that particular contraband based on their observations, training and experience (or some combination of this).

A recent decision out of a Brooklyn Criminal Court may further move the law more favorably towards the prosecution. Although not an appellate court case, People v. Calvin Telfair, 2011KN033977, NYLJ 1202547195953, at *1 (Crim., KI, Decided March 22, 2012), addressed not whether a lab or field test was necessary to convert a legally insufficient criminal court complaint into a valid information, but to what extent the police needed to provide both information as to their experience and training that enabled their conclusion. In Telfair, the police officer determined that a substance recovered from the defense was crack cocaine based on his “training as a police officer in the identification of crack cocaine.” Simply, the court held that the information (remember, this is a converted complaint), against the defendant was facially sufficient noting that the law does not require a recitation of both training and experience. Instead, citing People v. Santos, 17 Misc3d 520 (Crim Ct. NY Cty. 2007), the court noted “in order to correctly identify (a controlled substance) and to sufficiently allege its criminal possession, professional training OR prior experience are necessary.” (emphasis added). That is, one or the other and not both.

What value, if any, the decision in Telfair has for you particular arrest or Desk Appearance Ticket for NY PL 220.03 depends on how the crime against you is drafted in your criminal court complaint / information. Certainly, this may be one of many issues that you address with your New York criminal lawyer as you determine what your best defense may be in your case. Is this defense procedural and technical or is your best defense one based on the improper or illegal actions of the police? Alternatively, if you are lacking these defenses, is the best route the mitigation of your alleged conduct? Again, whatever your unique defense may be and how the laws of New York State and legal decisions of her courts may further that defense cannot be answered in a blog entry. Consult with the criminal defense attorney you have retained to represent you in court. Remember, even if the complaint is legally sufficient, this is only the first stage in the process. To prove the case beyond a reasonable doubt at trial, prosecutors must ultimately get that lab test to confirm the possession of drugs.

To read further about New York drug crimes, Desk Appearance Tickets or the countless cases, legal decisions and statutes that make up the New York Penal Law, please follow the links above or any of the links below to Crotty Saland PC’s websites, blogs and information pages.

Established by two former Manhattan prosecutors, Crotty Saland PC is a New York criminal defense firm representing clients accused of crimes throughout New York City and the surrounding region.

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