If your client is arrested for and charged with Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law 220.16) for allegedly possessing 45 glassines of heroin with the intent to sell that drug, you certainly engage the Assistant District Attorney when a non jail offer is made to the lesser felony of Criminal Possession of a Controlled Substance in the Fifth Degree (New York Penal Law 220.06). After all, the term of imprisonment on a class B felony is from one to nine years in prison upon a conviction. However, despite the apparent generous offer, when prosecutors made this exact offer to a Crotty Saland PC client, the response was likely not what the Assistant District Attorney expected in such a facially strong case. Whether it could be proven at trial or not, prosecutors filed a felony complaint alleging the police recovered 45 baggies of heroin from our client’s bag. Instead jumping at the offer, having discussed the arrest allegations in great detail with our client, the first question asked of the prosecutor was whether each of the 45 glassines contained heroin in a useable amount or merely residue. If the latter, then it would seem unlikely that our client intended to sell used baggies of heroin. Simply, it does not take a New York criminal defense lawyer (or even more importantly, a prosecutor) to recognize there is no market for used residual narcotics or controlled substances.
Sadly, the prosecutor from this New York City borough refused (yes refused) to answer whether or how many of the glassines contained residue. In substance, the Assistant District Attorney asserted that the information was not discoverable at this stage and the prosecutor was not required to tell the defense pre-indictment. In response, I argued that as a practical matter, the prosecutor should be less concerned about securing a felony conviction and more concerned about pursuing justice. A bad, weak or bogus felony is a bad, weak, or bogus case no matter the crime or its degree. Further, I told the prosecutor that if the bags only contained residue or the vast majority contained residue, then that evidence is what those who practice criminal law refer to as Brady material. In non legal terms, Brady material are those items, documents, recordings and any other physical or no physical information or evidence that tends to or can exculpate a defendant. Here, because the charge was that our client intended to sell heroin, we stated that if the heroin was not consistent with the amount or form that could be sold (again who is purchasing residue or empty glassines), it would exculpate our client in connection to the felony crime of PL 220.16. Disagreeing with us further and refusing to answer ourquestion, the prosecutor compounded matters by refusing to provide a supervisor’s name to discuss further.
On the next court date, the prosecutor offered our client the same plea to the lesser felony of PL 220.06. In open court, Crotty Saland PC advised of the conversation with the assigned prosecutor and stated that no plea deal could be accepted because it was not possible to ascertain the merits of the offer or the evidence in the case beyond the felony complaint. Agreeing with Crotty Saland PC, the court demanded that the prosecutor in the courtroom report back to our client and the court the amount of heroin recovered from our client’s bag. Returning shortly, the People offered our client a non-jail misdemeanor disposition. Although significantly better than the original Class B felony arrest charge and the Class D felony offer, this too was rejected because the People had not provided the laboratory analysis or some corroboration to the amount of drugs recovered from our client’s backpack when our client was stopped for not paying a subway fare.
Ultimately, after two court appearances and multiple requests, the District Attorney’s Office provided the laboratory results which reflected what we knew, but could not yet prove, all along. Of the 45 bags or glassines of heroin that the prosecutors refused to advise in terms of quantity, one (1) glassine tested positive for heroin (with an aggregate weight of .052 grams), five (5) glassines did not contain any substance at all for testing, thirty one (31) glassines were not analyzed because the bags contained only residue and eight (8) went untested. At worst, our client possessed nine (9) glassines of heroin and in the best case scenario, one (1). Although unfortunate from a personal perspective, the number of used or empty bags of heroin was consistent with personal use and not an intent to sell. Similarly, the number of potentially positive bags of heroin were consistent with misdemeanor personal use. In fact, other elements of a sale type case were not evident and pointed towards use. These included the lack of any significant amount of cash, other packaging materials, a ledger of any kind and interactions with buyers or statements to any party that our client was selling or sold heroin.
Although the District Attorney’s Office recognized this was not a felony case after we questioned the evidence (and they ultimate acknowledge as such), upon reduction to a misdemeanor crime of Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03), prosecutors did not make an offer. With our further diligence and perseverance, prosecutors ultimately agreed to move for an adjournment in contemplation of dismissal (ACD) upon proof that our client was treating the addiction. With that proof, the court dismissed our clients case and ordered its removal from the public record six months later. Our client’s record remained clean.
One could easily argue that upon our client’s arrest and processing, the New York City Police Department and District Attorney’s Office overcharged the case. Despite swearing to the fact that forty five (45) glassines of heroin were recovered from our Client when the officer signed the complaint, the police officer clearly knew at least five (5) glassines were empty and another thirty one (31) contained an insignificant amount of residue. Disingenuous out of the gate, what was likely an inexperienced prosecutor refused to share laboratory results or even acknowledge we were ultimately correct in claiming. Instead, a judge needed to push the release of information that could exonerate our client. Is this a typical means by which law enforcement conducts itself? Absolutely not. However, should one find one’s self caught up in the few times that this happens, that is once too many. Ever case is unique, requires varying degrees of investigation and analysis, and the appropriate defense to combat the charges.
To better understand New York drug crimes (formerly called New York’s Rockefeller Drug Laws) from misdemeanor heroin possession to felony cocaine sale and the prescription drug crimes that fall in between, please follow the links to the appropriate sections of the Crotty Saland PC website.
Crotty Saland PC is a criminal defense firm located in lower Manhattan. The New York criminal defense attorneys at Crotty Saland PC represent clients accused of controlled substance, prescription and narcotic drug crimes throughout the New York City area and suburban counties.