New York Criminal Lawyer Blog

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are "searched incident to your lawful arrest" where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple "nothing" case evolve into something so serious...

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

In trying to convince the court to permit the evidence against the defendant, prosecutors correctly asserted that warrantless searches are permissible in circumstance such as these because the police may lawfully arrest a person for violating an ordinance. In other words, if the police see you drinking an open container of beer and a law says you are not permitted to do so, then they can arrest you. Because the defendant's actions were "arrestable," prosecutors claimed that the police could then conduct a search incident to that arrest. While technically correct, the Court noted that the record from the lower court (the trial court as opposed to the appellate court), made it clear that the defendant was not arrested, but instead issued a summons (called an appearance ticket, but it appears as if this was more akin to a summons as opposed to a Desk Appearance Ticket in New York City). Further, the Court recognized the police had no intention of arresting the defendant but searched him anyway. In the words of the Court, "[i]f there is no arrest, however, there can be no search incident thereto."

Kalikow should make one thing clear. Merely because a defendant can be arrested, but is in fact not, does not give the police the authority to conduct a post arrest search. Despite the clear ruling from the Court, Kalikow is clearly fact specific, meaning, it is only applicable to limited cases. If, for example, you are issued a summons and the police notice a big bulge in your waist area that they can articulate appears to be a firearm, then the police can investigate further irrespective of that summons. Maybe they pat you down or maybe they make some inquires. Ultimately, if you are searched in a legal manner or during their investigation you state that you have a gun, the case addressed here may not help your cause, but your attorney should still seek to challenge the police and preserve your rights through a Huntley or Mapp Hearing.

To educate yourself further about criminal statutes found in the New York Penal Law, Desk Appearance Tickets, and the crimes of Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Possession of a Weapon in the Fourth Degree (as well as many others), please review the content found through the links above and below.

Established in 2008 by two former Manhattan prosecutors, the founding New York criminal lawyers at Crotty Saland PC utilize the wealth of knowledge and experience they have gained in their collective 24 years of criminal practice to represent clients throughout the New York City region.

Getting caught with illegal drugs in New York can be a frightening affair and one which certainly requires the assistance of an experienced criminal lawyer. Whether in the Bronx, Manhattan, Queens or Brooklyn, Assistant District Attorneys and judges can (and often do) stick to the book. Sometimes defending yourself against a misdemeanor or felony charged of Criminal Possession of a Controlled Substance can seem like an uphill battle. If you had the drugs - heroin, cocaine, etc., on your person or in your car, then there is nothing you can do right? Well, not exactly. In fact, not at all. Remember that the New York Constitution has strict guidelines regarding the ways in which NYPD officers can obtain evidence. New York has adopted standards arguably at least equal to and if not more protective of individual liberty then the standards set by federal cases. In this blog post, through the examination of a recent Bronx criminal case- People v. Sincere Pinckney, 75334C-10, NYLJ 1202514446063, at *1 (Sup., BX, Decided September 9, 2011)- I will elucidate (great word, huh?) some of the basic framework for measuring the legality of the intrusiveness of a police action in New York. The case provides a great illustration of circumstances under which evidence will be suppressed because it was unlawfully obtained in violation of the NY Constitution and the 4th Amendment.

In People v. Sincere Pinckney, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to VTL 511.1(a), Operating a Motor Vehicle Without a License pursuant to VTL 509.1, and Unlawful Possession of Marijuana pursuant to NY PL 221.05. It should be noted that in New York marijuana related offenses are specifically carved out from and identified as separate from Controlled Substances crimes (possession of cocaine or heroin, for example) found in Article 220. Unlawful Possession of Marijuana is actually not even a "crime," (Criminal Possession of Marijuana is a crime) but rather a violation. Nonetheless, although Pinckney involves a marijuana charge, the standard for what constitutes an unreasonable police intrusion resulting in the suppression of evidence will apply to more serious contraband cases (e.g. possession of cocaine or ecstacy).

So, let's get to the facts of Pinckney. Officer Gomez arrived to the scene of car accident in the Bronx. He observed the defendant, Sincere Pinckney, speaking with another male by the cars and when he approached heard the defendant say "I'm sorry, I just moved the car." Gomez spoke with other witnesses who identified the defendant as the person responsible for the accident--swiping three vehicles parked beside the curb. Therefore, Officer Gomez went back to question the defendant, and saw that the defendant had his hands in his pockets and asked him to remove them. When the defendant removed his hands two bags of marijuana fell out and then Officer Gomez patted down the defendant and asked for defendant's license. The defendant did not have a valid license.

Now People v. De Bour, 40NY2d 210, establishes the basic framework for measuring the intrusiveness of a police action in New York. The first level of intrusion permits an officer to approach a citizen and request information provided there is an objective, credible and articulable reason to do so. The second level permits a momentary stop when there is a "founded suspicion that criminal activity is afoot." Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor. Lastly, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime. Here, Officer Gomez asked if the defendant had a license--a permissible level-one inquiry. The officer had the basis for requesting this information because of the accident and the witnesses who saw the defendant swipe the other cars. However, the court in Pickney believed that asking the defendant to take his hands out of his pockets was a level-two inquiry. There was no indication that Officer Gomez suspected the defendant of any criminal activity upon approaching him; Gomez knew that there was a minor auto accident and that the defendant may have caused it, but as the court put it "a fender-bender, however, by itself, does not on its own suggest criminality and discretion is required."

As a result of the court's analysis above, the intrusion by Officer Gomez was illegal and the marijuana bags that fell to the ground were ruled inadmissible evidence. The recovery of all three bags containing marijuana was a direct result of unlawful police conduct, and therefore the Unlawful Possession of Marijuana charge was entirely dropped.

This case is a great illustration of the framework for police intrusions and something to be discussed with your own New York criminal lawyer should it be applicable to the allegations in your case. It is important to know your rights when dealing with the NYPD as well as prosecutors. Although it is not as easy as merely asserting a violation, of those individual rights are violated and/or guidelines ignored, the fruit of such an intrusion- the evidence- will not be admissible in a criminal trial.

Representing those accused of drug, narcotics and marijuana crimes throughout New York City as well as the suburbs, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys Office before establishing the defense firm. To educate yourself further about New York criminal laws, including those involving marijuana or controlled substances, please follow the highlighted links above or below.

Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a "Dis Con" could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one's time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

According to New York Criminal Procedure Law section 170.55(8), when one is granted an ACD, not only does the law provide that one will not suffer any type of "disability" as a result, but the initial arrest and subsequent prosecution are considered a "nullity." Furthermore, one is put back into the same position one was in prior to the arrest and prosecution.

Obviously, whether you are charged with New York Penal Law sections 155.25, 165.40, 265.01, 220.03 or any other crime, an ACD disposition can minimize the collateral consequences of the initial arrest. New York State law specifically sets forth a statute that deems your arrest a "nullity." Under the eyes of New York law, your arrest did not happened and you are "restored" to your pre-arrest status.

While a technical reading of New York Criminal Procedure Law section 170.55(8) establishes the "nullity" arrest result, the practical questions for one who is the recipient of an ACD are evident. Merely because New York State says in her laws that your arrest is a nullity, does that mean in fact you were never arrested? After all, you were handcuffed and printed. If, according to New York State law, your arrest is nullified, can you assert to an employer or on an employment application that you have never been arrested? What, if anything, will federal or other state authorities know about your case and arrest? What are the consequences of relying on the statute and denying your arrest should you be asked these questions?

Certainly, having to deal with an ACD and these questions about whether you were arrested or not are far better issues to deal with in comparison to those related to criminal convictions or convictions for violations. While attorneys may differ in their responses to the 170.55 issue, it behooves you to have the "arrest conversation" with your counsel.

For related information on Desk Appearance Tickets in New York, please review NYDeskAppearanceTicket.Com

In depth information on felony and misdemeanor crimes as well as on the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC, please review the Crotty Saland PC website. Lastly, extensive materials on criminal statutes, criminal procedures and legal decisions can be located throughout the NewYorkCriminalLawyerBlog.Com.

Unlike selling drugs or a controlled substance such as cocaine or heroin (New York Penal Law 220.39), selling marijuana (marihuana) in New York carries a significantly less punishment. Pursuant to New York Penal Law section 221.40, Criminal Sale of Marijuana (Marihuana) in the Fourth Degree, a person is guilty of this crime if they knowingly and unlawfully sell marijuana. A fairly straight forward offense, Criminal Sale of Marijuana is an "A" misdemeanor punishable by up to one year in jail.

An interesting question is whether or not the weight of the marijuana is relevant to New York Penal Law 221.40. While weight of the marijuana is an element that must be proven beyond a reasonable doubt in felony marijuana sales, as long as the prosecution proves that the accused sold the marijuana for "consideration," ie, money or for something in return, then weight does not matter. See People v. Childs, 40 A.D.3d 270 (1st Dept. 2007). Again, weight is relevant to felony sales, but as long as there was an exchange for consideration, weight has not impact on the charge of Criminal Sale of Marihuana in the Fourth Degree.

Having said that, weight is an element of a Criminal Sale of Marijuana in the Fifth Degree (New York Penal Law 221.35). Criminal Sale of Marijuana in the Fifth Degree requires that a person "knowingly and unlawfully sells, without consideration, one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of two grams or less; or one cigarette containing marihuana." A "B" misdemeanor, this crime is punishable by up to 90 days in jail.

The difference between the statutes is clear. If you sell marijuana for money in return, then you will be charged with NY PL 221.40. This is true even if the weight is insignificant. On the other hand, if you sell marijuana without consideration and the weight is two grams or less or you sell only one "joint," then the lesser NY PL 221.35 would be charged. Again, even if there is no consideration, if you sell more than two grams or more than one "joint" the "A" misdemeanor is the proper charge.

Like the sale of marijuana, possession of the same is impacted by numerous factors. In fact, possession not in public may not be a crime at all. Weight too factors into the potential offense. While this entry will not deal with marijuana possession charges such as Criminal Possession of Marijuana (NY PL 221.10) and Unlawful Possession of Marijuana (NY PL 221.05), know that the weight of the contraband, whether it is burning or in public view and other factors will influence the potential charge.

For further information on New York drug laws and crimes, follow the highlighted link to Crotty Saland PC's website. Additional information on drug and marijuana crimes as well as other statutes, legal decisions and cases in the press, please review the New York Criminal Lawyer Blog.

Crotty Saland PC was founded by two former Manhattan Assistant District Attorneys and represents clients throughout the New York City area.

The New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC have represented all types of professionals from teachers to physicians and lawyers to architects in criminal investigations and arrests. Our criminal attorneys have represented these professionals in arrests ranging from Petit Larceny Shoplifting (NY PL 155.25) and Theft of Services (NY PL 165.15) to Assault (NY PL 120.00) and felony Grand Larceny (NY PL 155.35). Because these professionals don't merely have their criminal case to be concerned about, our New York criminal defense attorneys at Crotty Saland PC routinely discuss the collateral consequence of an arrest and conviction with these clients. Now, according to reports, there may be an additional and grave concern for teachers arrested or given a Desk Appearance Ticket for any criminal charge ranging from Criminal Possession of Stolen Property (NY PL 165.40) to Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03).

According to reports, a New York State Senator has proposed legislation that will have dire consequences for teachers convicted of any crime (misdemeanor or felony). Regardless of any of our personal beliefs on the value of the tenure system or whether we believe the United Federation of Teachers serves themselves or students first, the bill in the New York State Senate appears to give a mayor of New York City the ability to terminate teachers convicted of crimes. According to one report, there are in excess of 500 teachers that still hold their jobs despite the fact that they have been convicted of a crime. While I have not read the bill, reports appear to indicate that Mayor Bloomberg, and his successors, would have the ability to dismiss these and future teachers convicted of crimes.

Whether or not this bill ultimately becomes law in New York State, teachers should be on notice. If you are arrested for any crime, even if it was something as "insignificant" as using a student's or a senior citizen's MetroCard to swipe at a turnstile, you need to take the appropriate steps to not only resolve the criminal case, but to protect your livelihood and future.

For further reading on Desk Appearance Tickets (DATs) in New York, Theft of Services, Assault, Shoplifting, Criminal Possession of a Controlled Substance and Grand Larceny, please follow the highlighted links above for the applicable section of the Crotty Saland PC website. For additional information on these crimes (and others) including, analysis of legal decisions and statutes, review the New York Criminal Lawyer Blog where you can search for the specific terms or go to more generalized sections of the criminal law.

The New York criminal defense attorneys at Crotty Saland PC represent the accused in criminal investigations, arrests and trials throughout the New York City region. Before starting the criminal defense firm, both founding members served as prosecutors in the Manhattan District Attorney's Office.

While no two cases are the same, the New York criminal lawyers at Crotty Saland PC have extensive experience representing those accused of Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03). In fact, the founding partners at Crotty Saland PC have experience on both sides of the law. Prior to starting the firm, both of our founding New York criminal defense lawyers served as Assistant District Attorney's in the Manhattan District Attorney's Office where they prosecuted individuals for misdemeanor and felony drug possession and sale.

Whether you are arrested for possessing cocaine, heroin, crack, oxycodone or a "designer drug," often times the police will issue a New York Desk Appearance Ticket to first time offenders charging them with NY PL 220.03. An "A" misdemeanor, this offense is punishable by up to one year in jail. In the event you are arrested and given a Desk Appearance Ticket in Manhattan for possessing a controlled substance, you will be required to appear at either 100 Centre Street or Midtown Community Court at 314 West 54th Street. Regardless, the charges are the same as if you had been arrested and held overnight to see a judge. Do not be under the impression that a Desk Appearance Ticket for possessing a controlled substance (NY PL 220.03) is not a serious matter. If you do not appear in court as required, a bench warrant will likely be issued for your arrest.

Potential Offers for First Time Offenders in Manhattan Criminal Court

As noted above, no two cases are the same. Having said that, prosecutors in Manhattan (New York County) often have general guidelines that they follow in first time arrests for Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03). Assuming you in fact are a first time offender, you are not charged with Resisting Arrest, Obstruction of Governmental Administration, Tampering with Evidence for trying to destroy the drugs or any other offense, the likely offer will be a Disorderly Conduct pursuant to New York Penal Law 240.20. It is important to note, however, that Desk Appearance Tickets charge only one offense, but prosecutors can charge additional crimes when you are arraigned on a criminal complaint in court. Moreover, there may be other factors that come into play before a offer may be made, including, but not limited to, the potential weight of the drugs, whereby more investigation may needed. Not a crime, a plea to Disorderly Conduct will not give you a criminal record.

Although the above scenario for a first time offender charged with NY PL 220.03 sounds relatively good and would not give that person a criminal record, there are more profound ramifications beyond the criminal realm. Disorderly Conduct pleas are ultimately sealed. This means there should be no public record that someone could dig up on you by going to court. However, as a practical matter, a significant amount of these violations are not sealed or sealed improperly. As I have mentioned in the past, there has been at least one high profile lawsuit (there may be many more) involving New York State. The basis of that lawsuit was that a Disorderly Conduct and underlying arrest was revealed after an individual applied for and was denied a job at a department store.

In my own personal experience as a New York criminal defense attorney, I have received countless emails and phone calls from people who are concerned or distraught that an employer's background check revealed their Disorderly Conduct from years ago as well as their underlying misdemeanor arrest of Petit Larceny for shoplifting, Criminal Possession of a Forged Instrument for having a fake ID or Criminal Possession of a Controlled Substance for possessing drugs for personal use. Obviously, even though it is not a criminal disposition, accepting a Disorderly Conduct could be devastating to a college student with an open future or any individual who might be subject to a background check for employment or promotions such as a teacher, financial analyst or any other professional.

Beyond the reality that this Disorderly Conduct may be found out by those who are subject to background checks and certifications or professional licenses, those individuals who are not citizens also may have issues. Although a violation is not a "crime of moral terpitude," an immigration attorney can be consulted to discuss what ramifications a Disorderly Conduct may have on your current or future status in the United States.

If Not a Disorderly Conduct, Then What?

I generally advise my clients that in lieu of just accepting the prosecution's offer of a Disorderly Conduct, we should fight the case in an attempt to obtain an Adjournment in Contemplation of Dismissal (ACD). I say "generally," because no two cases are alike and each set of facts and evidence requires a unique analysis with the criminal defense attorney that you hire and consult with.

Assuming an ACD is attainable, the benefits far outweigh the benefits of a Disorderly Conduct with one major exception. The most significant benefit of an ACD over a Disorderly Conduct is that not only will the case be sealed, but it will be dismissed as well. Six months after the initial adjournment, the case, as a matter of law, will be dismissed. Only in limited circumstances will evidence or the fact of the arrest appear (discuss with your criminal defense attorney when the underlying arrest may be revealed). The problem for some people is the six month waiting period. A disorderly conduct is resolved upon the plea (and whatever conditions the court requires).

A Word (or Words) of Warning

As I keep on noting, and will continue to do so, no two cases are alike. While there are general guidelines that are often followed by prosecutors, there is no guarantee an offer will be made to you even if this is your first offense. Whether you are arrested and processed through the system or issued a Desk Appearance Ticket, consult with your counsel, identify a defense that will either challenge the evidence or mitigate your conduct and implement that defense to protect your future.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a New York law firm focused on defending clients against criminal allegations. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.

Extensive information on Desk Appearance Tickets as well as New York Drug Crimes can be found through the associated links or on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) where legal analysis of criminal statutes, case decisions and newsworthy cases can be found.

According to Manhattan District Attorney Cyrus Vance, Jr., this Medicaid bust may be just the tip of the prescription pad iceberg and that more arrests in other investigations are coming. Prosecutors allege that Patrick Alcindor, a pharmacist with Procare Pharmacy, located at 1728 Amsterdam Ave. in Washington Heights, over-billed Medicaid for more than $1.8 million between April 2009 and March 2010. In fact, prosecutors claim that during this sting operation, an undercover police officer gave Mr. Alcindor written prescriptions to be filled, but the undercover police officer got a fist full of dollars in instead. These prescriptions included medications such as Reyataz, Truvada, Prezista, Procrit, and Zyprexa. Instead of dispensing this medication, Mr. Alcindor allegedly dispensed cash to the undercover police officer as part of Mr. Alcindor's alleged scheme to swindle Medicaid. Mr. Alcindor would then bill Medicaid as if he really filled the prescription for the drugs. It is claimed by law enforcement that another pharmacy worker was in on the scheme.

Mr. Alcindor is currently charged with numerous counts of Grand Larceny including Grand Larceny in the First Degree. Additionally, the indictment charged Mr. Alcindor with Criminal Diversion of Prescription Medication in the Fourth Degree. For whatever reason, prosecutors chose not to charge Mr. Alcindor with the crimes of Forgery, Criminal Possession of a Forged Instrument and Falsifying Business Records for his alleged conduct in completing and filing false documentation to obtain the money from Medicaid.

Ranging from "E" to "B" felonies, if convicted of the most serious Grand Larceny offense, Mr. Alcindor faces a minimum of one to three years in prison with a maximum term of eight and one third to twenty five years in prison.

Although a crime, Criminal Diversion of Prescription Medication in the Fourth Degree (New York Penal Law 178.10) is "merely" a misdemeanor punishable by up to one year in jail. It is interesting to note that there is a defense found in the New York Penal Law to this crime. A duly licensed pharmacist acting in good faith in the lawful course of the practice of pharmacy may argue that his or her conduct was - just as it says in the statute - in good faith and not criminal. Practically speaking, however, it will certainly be "difficult" to convince a jury or judge that Mr. Alcindor acted in good faith if the evidence as reported by prosecutors is accurate. Having said that, Mr. Alcindor has a long road ahead of him regardless of the defense he determines is best.

Extensive information regarding the varying degrees of Grand Larceny and Article 155 crimes can be found on the highlighted links. A detailed look at the crime of Criminal Diversion of Prescription Medication in New York can also be found on the respective links as well. Additionally, the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) has a significant amount of information regarding these and other crimes as well as statutes, legal decisions, analysis and newsworthy cases for review. Once on the blog, a search of these crimes will reveal this and other information.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland PC represents clients throughout the New York City region in criminal matters ranging from investigations to trials.

Although it sounded horrific on paper, the New York criminal defense lawyers at Crotty Saland PC arguably obtained the best result for a client charged with Criminal Possession of a Weapon (a .380 handgun), Criminal Possession of a Controlled Substance (cocaine), Unlawful Possession of Marijuana and Driving with a Suspended License. Despite the allegations, our client pleaded to the violation of Disorderly Conduct. This disposition avoided not only a criminal record, but jail or probation.

Our client, a resident of North Carolina, came to New York to visit family. Unaware of the laws here, the client brought a legally registered firearm from his home state into New York. When he was pulled over for an alleged traffic infraction, the police also found some marijuana and cocaine on his person in an amount consistent with personal use. Compounding matters, our client was driving on a suspended license for old tickets he was unaware about.

After providing the District Attorney's Office with a significant amount of mitigating factors, including proof of the gun's legal North Carolina registration and ownership, the work and familial history of our client, and other directly relevant information, all parties came to an agreed upon disposition. Our client payed off his old summonses, forfeited the firearm and over the course of the year provided the District Attorney's Office with proof (clean urine readings) that he was not using any controlled substance. As a result, the District Attorney's Office permitted our client to enter a plea to Disorderly Conduct with the condition that he remains out of trouble for the next year.

On par with some of our recent successes, this case, like ever case, is unique and required a specifically tailored defense (prior results do not guarantee a future outcome). All things considered, our client obtained one of the best results in the face of these particular serious allegations. Fortunately, our client's ignorance about the gun laws in New York and possession of drugs for personal use did not destroy his career or future.

For extensive information on New York gun and weapon crimes as well as Criminal Possession of a Weapon, please follow the appropriate link. Moreover, further information on Criminal Possession of a Controlled Substance and New York drug crimes can be found on the respective link as well. The Crotty Saland PC website and New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) also has legal analysis, criminal statutes, recent case decisions and newsworthy cases as to these and other areas of criminal law.

The New York criminal defense lawyers at Crotty Saland PC represent the accused in allegations of weapon crimes throughout the New York City region. Before starting the criminal defense firm, both partners served as Assistant District Attorneys in the Manhattan District Attorney's Office.

Criminal Possession of a Controlled Substance...Criminal Sale of a Controlled Substance...heroin, crack-cocaine and cocaine (note that marijuana is not a Controlled Substance crime). Your NY criminal defense attorney has heard of these crimes before and it is likely you have as well. However, what we have all learned and grown accustomed to over the years may no longer be valid. Why? The old Rockefeller drug laws in NY have drastically changed. We, the NY criminal defense lawyers at Crotty Saland PC, have reviewed the applicable statutes as they relate to to the possession and sale of drugs and will address some of these changes in our first entry on this subject.

Pursuant to the first change in the Rockefeller drug laws, "B" drug felonies found in Penal Law section 220.39 - Criminal Sale of a Controlled Substance in the Third Degree and New York Penal Law section 220.16 - Criminal Possession of a Controlled Substance in the Third Degree, required a mandatory term of imprisonment for a first time felony offender between one and nine years. The recent change now permits sentences that are a mix of probation and jail or even straight probation. Moreover, Willard, an inpatient drug treatment program and facility, is available for these first time offenders. Another change provided by the amended statutes authorizes courts to placed defendants convicted of the "B" drug crimes into SHOCK incarceration where previously a judge did not have the ability to do so. Previously, the NYS Department of Corrections had the authority to make this determination and could deny SHOCK even if a judge requested it.

Those individuals who are convicted of lesser drug felonies, sale or possession, will benefit from the change in the law as well. Like the "old" law, defendants convicted of these crimes may not go to jail. While non-incarceratory sentences are still permitted, like the more serious "B" felony offenses, a judge can place a defendant into the SHOCK program.

Although brief, this entry addresses the potential sentences and ramifications a first time offender faces if convicted of a narcotics felony. Only an overview, a thorough analysis of the facts and circumstance of your particular case is necessary to implement the strongest criminal defense.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in drugs and narcotics allegations throughout the New York City region. Further information on drug crimes as well as other penal law statutes, legal decisions and news worthy cases can be found on both the Crotty Saland PC website and the New York Criminal Lawyer Blog.

While there are bright and articulate people on all sides of the argument to legalize marijuana in New York State, as it stands now the law is clear. Possession of marijuana ("marihuana" in the New York Penal Law) is illegal. In New York City (Manhattan, Brooklyn, Bronx and Queens) as well as in Westchester County, possession of merely a joint can lead to an arrest or issuance of a Desk Appearance Ticket for Unlawful Possession of Marijuana (New York Penal Law 221.05), Criminal Possession of Marijuana in the Fifth Degree (New York Penal Law 221.10) or Criminal Possession of Marijuana in the Fourth Degree (New York Penal Law 221.15).

The issue for most people, however, is not whether possession is illegal or whether they will be issued a New York Desk Appearance Ticket or be put through the system. Instead, a question often asked to New York criminal defense attorneys is what is the potential punishment and, secondarily, how will this impact the accused's future. This first entry on this topic will address the violation and the misdemeanor crimes involving marijuana possession as well as the potential punishment associated with those offenses. A later entry will address the felony crimes involving the possession of marijuana.

Unlawful Possession of Marijuana (NY PL 221.05)

Unlawful Possession of Marijuana is perpetrated when one knowingly and unlawfully possesses marijuana. Often times the scenario where this offense is charged is where the marijuana is not burning or open to public view, but it is recovered from a pocket or similar location. A "violation," a conviction of this offense will not result in a criminal record. For a first time offender, a fine of no more than $100 will be levied as well as possible court costs.

Criminal Possession of Marijuana in the 5th Degree (NY PL 221.10)

One can be convicted of Criminal Possession of Marijuana in the 5th Degree when one possesses the marihuana in a public place and it is either burning or, alternatively, open to the view of the public. Moreover, even if the marijuana is not possessed as described, a conviction will be sustained if the aggregate weight is more than twenty-five grams but no more than two ounces.

A "B" misdemeanor, this crime is punishable by up to 90 days in jail.

Criminal Possession of Marijuana in the 4th Degree (NY PL 221.15)

A person will be found guilty of Criminal Possession of Marijuana in the 4th Degree if the prosecution proves beyond a reasonable doubt that you unlawfully and knowingly possessed marijuana with an aggregate weight exceeding two to eight ounces.

An "A" misdemeanor, this crime is punishable by up to one year in jail (Rikers Island or the Westchester County Jail).

It is important to note that mere possession and even an admission by the accused does not mean the accused should plead guilty or accept a criminal conviction. Often times there are multiple ways to fight these cases. For example, whether you were issued a Desk Appearance Ticket for marijuana possession or arrested for possessing the contraband, a Marijuana Adjournment in Contemplation of Dismissal (ACD) may be a potential way to resolve your case. Although it should be further discussed with your New York criminal defense lawyer, the case can be dismissed and sealed in year leaving you without a criminal record. Alternatively, if you are charged with Criminal Possession of Marijuana in the Fourth or Fifth Degrees and you are not eligible for a Marijuana ACD, a plea to the violation and a fine may be a way to avoid a criminal conviction.

Beyond the potential crimes and punishments, another important issue that should be addressed in these types of cases is how it came to be that you were stopped and searched by the police. Where did they recover the marijuana? Was it on your person? How did they get into your pockets? What was there probable cause? At bottom, was the search legal? It may be that conduct by the police was absolutely legitimate, but these issues are certainly areas that should be explored.

The above primer for marijuana misdemeanor crimes is just that...a primer. There are many substantive issues and concerns that should be addressed that are beyond the criminal case. Will this impact your certification or licensing? Will you have a record forever if convicted of these crimes? What about if you are only convicted of the violation? The list goes on.

For further information about New York Desk Appearance Tickets, please follow the highlighted link. For information on marijuana crimes, recent legal decisions, newsworthy cases and other offenses, please read the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

The New York criminal defense attorneys at Crotty Saland PC represent clients in all criminal matters throughout the New York City region. Prior to starting the firm, the founding partners served as prosecutors in the Manhattan District Attorney's Office.

A common felony offense charged by police and defended by New York criminal defense lawyers in the arena of controlled substance, narcotic and drug crimes, is Criminal Possession of a Controlled Substance in the 5th Degree pursuant to New York Penal Law section 220.06(5). A serious crime involving the possession of cocaine, CPCS 5th Degree is a "D" felony punishable from one year to two and a half years in state prison for a first time offender. Obviously, if you are a "predicate felon" you will face more time in state prison. Fortunately, due to changes in the Rockefeller Drug Laws, there are potential ways to avoid state prison that should be discussed with your New York criminal defense attorney.

Having briefly addressed the ramifications of New York Penal Law 220.06(5), the following entry will take a step back and (1) define the offense as it relates to cocaine possession and (2) discuss whether the 500 milligrams is an aggregate weight or a pure weight measurement.

Simply put, Criminal Possession of a Controlled Substance in the Fifth Degree, New York Penal Law 220.06(5) is defined as follows:

If one knowingly and unlawfully possesses 500 milligrams or more of cocaine, one is guilty of Criminal Possession of a Controlled Substance in the Fifth Degree.

First, while it appears straight forward, one must not only possess the cocaine, but must knowingly possess that cocaine and know that the weight is 500 milligrams or more. In other words, if the prosecution is unable to establish your knowledge that the weight of the drug was 500 milligrams or more, the case should be reduced (easier said than done). Again, it is not the mere knowledgeable possession, but knowledge of the weight as well. If only knowledge is established, but not weight or knowledge of that weight, then the appropriate charge is likely the misdemeanor crime of Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03) as that is the lesser "default" crime for possession of any controlled substance.

The second issue briefly mentioned above will get a brief answer. 500 milligrams is a pure weight measurement. Therefore, if you possesses 600 milligrams, 500 of those milligrams must be cocaine and not some other mixture. Another way to look at this crime is that even if you possess 525 milligrams of cocaine, if the pure cocaine is less than 500 milligrams, then NY PL 220.06(5) is not the proper charge.

Unfortunately, in the realm of drug crimes, escaping one offense may still open the door to another charge. While there are too many scenarios to discuss in one blog entry, even if you were to possess 525 milligrams, of which only 300 is pure cocaine, you may still face additional crimes. If the prosecution can establish you had the intent to sell those drugs (maybe you had a scale, baggies, etc.), you may also face the significantly more serious crime of Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony.

For further information on New York drug crimes, please follow the highlighted link and review the drug section of the New York Criminal Law Blog at Crotty Saland PC's NewYorkCriminalLawyerBlog.Com.

Prior to starting the New York criminal defense firm, the founding members of Crotty Saland PC served as prosecutors in the Manhattan District Attorney's Office. Jeremy Saland, one of our New York criminal defense lawyers, was also cross designated with the Office of the Special Narcotics Prosecutor on two large scale and multi-jurisdicitional narcotic investigations.

Crotty Saland PC represents clients in all criminal matters throughout the New York City region.

Maybe you stole a couple of sheets from a physician's prescription pad and made out a completely fake prescription for drugs and medicine such as Vicodin, Oxycodone or OxyContin. Maybe you altered your doctor's legitimate prescription by increasing the dosage or amount of Xanax, Adderall or Ritalin. Regardless of how the fraudulent prescription is drafted, as long as it is in fact altered you may face the "D" felonies of Criminal Possession of a Forged Instrument in the Second Degree or Forgery in the Second Degree.

If you actually drafted, created or altered the prescription fraudulently, a likely charge you will face is Forgery in the Second Degree pursuant to New York Penal Law 170.10(5). Often times, however, the police and prosecutors do not catch the person in the act of the alteration. Instead, either a search of a vehicle, a person's clothing or even the retrieval of the forged prescription from a pharmacist will result in a charge of Criminal Possession of a Forged Instrument in the Second Degree pursuant to New York Penal Law 170.25. Regardless of which offense is charged, a conviction for these felonies is punishable by up to seven years in state prison.

The actual law is not as simple as presented above. For example, the prosecution must establish beyond a reasonable doubt that you had the intent, for example, to deceive, injure or defraud another. Moreover, as it relates to a physician or doctor's prescription in New York, there is specific language that governs both Forgery and Criminal Possession of a Forged Instrument. New York Penal Law sections 170.10(5) and indirectly 170.20 establishes that a person would be guilty of these crimes if the written instrument purports to be:

"A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law."

It is worth noting in this entry that if you are successful in obtaining the prescription medicine and you no longer have the fraudulent prescription as it is in the possession of the pharmacist, you are not "safe" from prosecution. Assuming it can be established that you possessed that prescription earlier and provided it to the pharmacist, you can still be charged with one of these crimes. Moreover, although a different crime, if you are found in possession of a medicine that is also a controlled substance, you can face narcotics related charges. While simple possession may only be a misdemeanor (Criminal Possession of a Controlled Substance in the Seventh Degree) you may be charged with other offenses including Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony, in the event the prosecution can establish you had the intent to sell the drugs.

This brief blog entry should make it overwhelmingly clear that accusations involving prescription drug abuse, prescription fraud and possession of controlled substance are all serious offenses in New York. While you may have a strong defense to these crimes that need to be vetted with your counsel, the road ahead will certainly be trying.

For further information on the crimes of New York Forgery, New York Criminal Possession of a Forged Instrument and New York Criminal Possession of a Controlled Substance, please follow the highlighted links.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent the accused throughout the New York City region.

Whether you are issued a Desk Appearance Ticket (DAT) or you have been arrested in Manhattan, Brooklyn or anywhere else in New York, if you possess a controlled substance you may be charged with New York Penal Law section 220.03. This offense, Criminal Possession of a Controlled Substance in the 7th Degree, is an "A" misdemeanor punishable by up to one year in jail and applies to such drugs as cocaine, crack-cocaine, heroin, extacy, oxycodone, etc. Make no mistake. If convicted of NY PL 220.03, you will have a criminal record that will not just go away. Even a plea to a Disorderly Conduct (NY PL 240.20 - a common offer in misdemeanor drug cases) can have real life ramifications years down the road.

Criminal Possession of a Controlled Substance in the Seventh Degree, NY PL 220.03, is defined as follows:

A person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he knowingly and unlawfully possesses a controlled substance.

Although the above definition is very basic, two things should be clear. First, it is important to note that this charge does not apply to marijuana related offenses. Second, there is no mention of a particular quantity or amount of the controlled substance that is needed to establish a violation of NY PL 220.03. The reason why the statute leaves out any threshold amount is because quantity does not have any relevance on this particular charge as long as there is enough to establish the actual presence of the drug in question.

The Court of Appeals, New York's highest court, has found that an unusable amount of cocaine residue sufficiently establishes this crime. People v. Mizell, 72 N.Y.2d 651 (1988). In fact, the Court of Appeals, referencing earlier and lower court decisions, stated that "[s]o long as the quantity is sufficient to permit proper identification as a controlled substance, amount is immaterial." To be clear...if the prosecution can test and find the presence of the controlled substance it is irrelevant that it was "merely" residue that you could no longer use or sell.

Although the amount is immaterial as to the charge of NY PL 220.03, if the prosecution can establish that the weight of the controlled substance was 500 mg, an eighth of an ounce or even greater, felony charges may be brought. Moreover, if the People can establish you had the intent to sell the controlled substance a felony offense may be charged as well. Obviously, these charges have much more significant ramifications such as terms of incarceration in state prison.

For further information on drug crimes and criminal defense, please review our earlier articles relating to constructive possession (when possession of drugs is not physical) and whether prosecutors need to provide a laboratory analysis at your arraignment for drug charges.

Founded by two former Manhattan prosecutors, Crotty Saland PC is a criminal defense firm representing clients throughout the New York City region.

Although the Rockefeller Drug Laws have certainly eased over the years, New York Criminal defense attorneys and their clients must have a working knowledge as to the law involving legal presumptions and Criminal Possession of a Controlled Substance. While often times the police allegedly observe a sale or the actual possession, New York's Penal Law permits certain presumptions that the accused possessed the drugs in question. These presumptions are narrowly construed, but may be applicable in your case depending on the facts and circumstances. Whether the drug is cocaine, heroin or crack, the following presumptions apply:

220.25 Criminal Possession of a Controlled Substance; Presumption:

1. The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.

The above drug presumption is often referred to as the "Automobile Presumption." Whether there is a small amount for "personal use" or kilos of cocaine, the presumption is the same. If the drugs are in "open view," for example, there is a presumption under the law that everyone possessed it. Even if the drugs are not in "open view," the presumption can still apply. There are a few exceptions to this rule. A driver for hire (a livery cab or yellow cab driver) would not fall into this presumption. Another exception would take place where an individual possessed the drugs on his or person. Where the drugs are concealed on that person, the presumption would not apply to others in the vehicle. What is equally important is that the "Automobile Presumption" does not apply to marijuana. In fact, marijuana is expressly not subject to this presumption. People v. Dan, 55 A.D.3d 1042 (3 Dept. 2008).

The second presumption, found under NY Penal Law 220.25(2) is as follows:

2. The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found; except that such presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (b) one of them has such controlled substance upon his person.

This second presumption applies not only to controlled substances and narcotics such as cocaine or heroin, but expressly applies to marijuana as well. Moreover, as noted in the language of the statute, the substance must be in "open view" and the defendants must be in "close proximity" to the contraband in question. Although "close proximity" need not be the same room, location of drugs in an adjacent room where a defendant is not located may not satisfy this "close proximity" requirement. People v. Davis, 195 Misc.2d 858 (Rochester Cty Ct. 2003); People v. Caban, 90 Misc.2d 43 (Kings County 1977). Lastly, evidence and facts must establish that the defendants had an intent to sell. Merely displaying drugs without the intent to sell is not enough. People v. Uribe, 113 Misc.2d 207 (New York County 1982).

The above analysis of drug possession presumptions under article 220 of the New York Penal Law is a brief one. There are countless cases addressing and defining the definitions and meanings in the statutes. Although a good starting point, if you are charged under the presumption theory, you should consult with an experienced criminal defense attorney in New York to ascertain how, if at all, these presumptions impact your case.

Crotty Saland PC is a criminal defense firm representing clients in New York City and the metropolitan region. Crotty Saland PC was founded by two former Manhattan prosecutors.

Follow us on Twitter at DefenseLawyerNY.

A crime that has been on the rise as of late is the offense of Criminal Diversion of Prescription Medication pursuant to Article 178 of the New York Penal Law. While street level dealers are often involved in this crime, Criminal Diversion of Prescription Medication can arguably be viewed as the "white collar" crime of the narcotics world. Recently, in a case pending in Manhattan Supreme Court, a judge addressed the issue regarding the means by which the prosecution must establish the presence of a particular prescription medication. The question raised was whether or not it is sufficient to establish that a particular substance is a prescription medication if that fact is established solely by the statements of the accused and without further corroboration. In other words, has the prosecution met its burden by using the statements of a "seller" who says the drugs are a particular prescription medication without expert testimony or a laboratory report?

According to Judge Marcy Kahn, in People v. Khan, 3299/2008:

"'[I]n a drug-related prosecution, the People's case is legally sufficient if the evidence provides a 'reliable basis' for inferring the presence' of the drug. (People v. Swamp, 84 NY2d 725, 730 [1995], citing People v. Kenny, 30 NY2d 154, 157 [1972]). Expert testimony is sufficient, but not necessary, for this purpose. "More than conclusory assertions" are required, however, to meet the legal sufficiency standard. (Id., [additional citation omitted]). That said, the substance itself need not be produced at trial (People v. Czarnowski, 268 AD2d 701, 702 [3d Dept. 2000]), nor need it necessarily have been subjected to laboratory analysis, the results of which are introduced at trial. (People v. Houston, 72 AD2d 369, 379 [2d Dept. 1980]). The nature of the drug may be proved circumstantially (id.), and where the substance is not available for analysis, consumers who are familiar with the substance, from their own actual use of the drug, or from observation or study, may be competent to give testimony identifying it. (People v. Lynch, 85 AD2d 126, 128 [4th Dept. 1982]; see People v. Christopher, 161 AD2d 896 [3d Dept.], lv. denied, 76 NY2d 786 [1990]). 'The test...in situations where the illegal substance is not available for analysis, is the experience of the witness and the nature of [his or her] qualifications to identify the substance at issue.' (People v. Lynch, supra, 85 AD2d at 128). Where purchasers of prescription medication merely offer conclusory statements as to the nature of the drug, the evidence is insufficient to establish its identity. (People v. O'Neill, 285 AD2d 669 [3d Dept. 2001]). While a pharmacist may offer expert testimony identifying a drug by its physical appearance, based upon his or her training and experience (People v. Czarnowski, supra), the prosecution's reliance solely on identifying statements made by a defendant is insufficient to prove the nature of the drug, absent corroborating evidence. (People v. Ross, 12 Misc.3d 755, 760 [Crim. Ct. Kings Co. 2006] [citing CPL ､60.50]).

Judge Kahn's assessment of the necessary requirements for corroboration are clear. A layperson alone can not establish the nature of the narcotic or prescription medication especially if belief is an unsupported conclusion. The basis of that conclusion, supporting testimony, laboratory tests, expert analysis or other elements are necessary for corroboration.

Crotty Saland PC is a New York criminal defense firm founded by two form Manhattan prosecutors. We can be followed on Twitter at DefenseLawyerNY.