New York Drug Crimes and Personal Possession: Can You be Prosecuted for Possessing Residue without a Chemical Analysis

Heroin. Cocaine. Ecstasy. Adderall. Molly. MDMA. New York’s list is long and vast. If you possess certain drugs, narcotics and controlled substances (including certain prescription drugs that you are not prescribed by a doctor), you can face a wide variety of crimes found in New York Penal Law Article 220. Even if you did not have the intent to sell those drugs (New York Penal Law 220.16(1) or New York Penal Law 220.06(1)) or actually sell the drugs (New York Penal Law 220.39(1) or New York Penal Law 220.31), possession for personal use is still a crime. New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance, is the catch all “personal use” offense in New York State whereby the police and the District Attorney can charge you with a misdemeanor punishable by up to a year in jail for possessing small amounts of a controlled substance.

In the above scenarios, whether you find yourself arrested and hauled into Manhattan Central Booking or are given a NYC Desk Appearance Ticket in Brooklyn, the law actually permits an officer with the NYPD to claim the substance in your possession is a narcotic or controlled substance without ever testing the substance to confirm its an illegal drug. That is right, if the officer can examine the white powder, pill or anything else and claim his experience and training tells him it is a drug, then at the preliminary stage he has just bought you at least a temporary rap sheet, arrest, criminal complaint and date with the court for an arraignment on PL 220.03. The question posed in this blog is whether the same can be said for amounts that are significantly smaller and not so clear to the eye.

In People v. Kalin, 12 NY3d 225 (2009), New York’s highest court, the Court of Appeals, held that even without a laboratory report, a police officer can utilize his or her training and experience, along with other indicia (packaging, paraphernalia, statements, etc.), to establish in the pleading stages of criminal action that the substance in question is an illegal controlled substance. More specifically, the appearance and other elements alone could be used to draft a legal and facial sufficient complaint (this is true even if a lab report is later required to prove the controlled substance is “beat”).

But what if the drugs in question is not a bag or cocaine or something clearly identifiable? What if there is only partially burnt or fairly insignificant amounts of residue that may no longer be ingested for much, if any, impact? Is this a crime and, if so, can a prosecutor draft a legally sufficient complaint that the residue in question is a drug without a lab report to confirm? The simple and short answer is in the affirmative.

In People v. Smalls, 2015 NY Slip Op 09188 (2015), the Court of Appeals applied the Kalin standard not to another “clear” drug case, but a residue arrest involving Criminal Possession of a Controlled Substance in the Seventh Degree. In Smalls, ” the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant’s possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe.” In other words, whether or not the officer wrongfully makes his or her conclusion about the substance in your possession, the alleged drugs are a good fake, or there is simply a legitimate mistake, if the police can assert that the substance is a controlled one, based on their training and experience potentially along with some other factors, prosecutors have the ability to move forward in a case against you.

Is there any silver lining or does law enforcement have unlimited power? Can a court or jury convict you for a crime without any independent and scientific proof? Fortunately, in the event your case goes to trial, a laboratory analysis is necessary. Proof beyond a reasonable doubt is a much higher standard than legal or facial sufficiency in the initial pleading stage. Because of this increased burden, should you believe that the police made a mistake, your attorney can ask, and prosecutors must ultimately obtain if the case proceeds to trial, the lab that can ultimately exonerate you.

To find out more about the degrees of New York controlled substance and drug crimes, including Criminal Possession of a Controlled Substance in the Seventh Degree, how they are prosecuted and other practical and relevant information, follow the links in this entry, search this blog for additional legal analysis and consult with your New York drug crime defense attorney.

The New York criminal lawyers at Crotty Saland PC represent clients in New York City and surrounding suburban counties for investigations, arrests, indictments and trials.

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