NY Drug / Narcotic / Controlled Substance / Marijuana / Marihuana Possession Presumptions: New York Penal Law Sections 220.25(1) & 220.25(2)

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.

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