Assumption Based Guilt: An Officer’s Assumption May be Enough to Establish the Presence of Drugs in a PL 220.03 Arrest

The concerns of a person arrested for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, are many. If you are doctor, accountant, teacher, lawyer or financial services professional, what will happen to your license or certification? Beyond the initial scare and concerns, what are your potential sentences and punishment? For those who are not American citizens and here on visas – work or student – how will your arrest impact your future. Desk Appearance Ticket or full on arrest through central booking, dealing with the uncertainty and legitimate concerns of your arrest for cocaine, heroin, molly, ecstasy, or any controlled substance is something to address with your criminal lawyer.

Outside of these collateral, secondary and sentencing issues, another topic, and arguably the first one, you will discuss with your criminal lawyer or criminal defense attorney will be how you can challenge your arrest and DAT (also called an appearance ticket) for PL 220.03 in New York City. Sure, you will address why the police stopped you and how it came to be that you were searched, but another issue may be whether or not the controlled substance or narcotic in question is in fact a drug – heroin, cocaine, molly, etc. While the good news is that the prosecution has the burden to prove this element (and every) beyond a reasonable doubt, that bad news i that in the past few years the law has evolved (or devolved) to the point where an officer can make a determination without conclusive evidence from a field test or laboratory analysis. Hey, you may have purchased bogus drugs before you entered a concert, but he courts will find the complaint against you sufficient based on the assumption of a police officer. Sadly, the following two cases illustrate how the law favors the law enforcement and not the potentially wrongly accused.

In People v. Graves, 2013 NY Slip Op 52126(U) (First Dept. 2013), the Appellate Court affirmed a lower court’s decision finding the allegations in a complaint accusing a defendant of possessing crack-cocaine in violation of NY PL 220.03. There, the defendant threw down a crack pipe and stomped it. The police officer recovered the broken crack pipe with cocaine residue. The “[police] officer believed the substance was crack cocaine based upon ‘his professional training as a police officer in the identification of drugs [and] his prior experience as a police officer in drug arrests.'”

According to the Court,

With “a fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]), we find “as a matter of common sense and reasonable pleading” (People v Davis, 13 NY3d 17, 31 [2009]) that it established reasonable cause to believe and a prima facie case that defendant was guilty of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03; People v Kalin, 12 NY3d 225, 231-232 [2009]).

Similarly, in People v. Pearson, 78 A.D.3d 445 (First Dept. 2010), a police officer recoverd a condom with eight glassines of a “beige powdery substance.” Based on the officer’s training and experience, and without any scientific analysis, the officer deemed the substance to be heroin. This assumption, without more, was sufficient for the lower court to allow the people to move forward on their case and to find the legal allegations sufficient.

While there are valid arguments on both sides of this issue and the public likely would like to err on the side of caution in cases involving significant amount of drugs, the casual user or addict suffers the consequence. Certainly, the presumption of innocence is always the accused’s but I am confident that more than one defendant has taken responsibility for possessing a controlled substance when the believed drug in his or her possession was not what it seemed to be.

To read more about defenses to drug crimes, legal decisions defining New York drug crimes and the various statutes and offenses, review this blog and the websites listed below (as well as the hyperlinks above). Information on New York City Desk Appearance Tickets are available at both and NYDeskAppearanceTicket.Com

Saland Law PC is a New York criminal defense firm that represents clients in drug possession crimes and arrests. Saland Law PC was founded by two New York criminal lawyers who served in Robert Morgenthau’s Manhattan District Attorney’s Office.

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