The state of the New York Penal and Criminal Procedure laws as practiced in New York courts is overly restrictive and burdensome. What says you? According to whom? The state of the New York Penal Law and Criminal Procedure Law as practiced in New York courts is overly lenient and broad!
The beauty of asking two different people the same question, especially in New York, is that you will get two different answers. Irrespective of one’s personal view, any spectator or active participant in the criminal justice system will likely tell you that on any given day you can likely see both of these perspectives play out in courtrooms from New York City to Buffalo. Without addressing the validity of the above conclusions or what might happen from day to day, there is one area of law that, right or wrong, that is stacked against the accused. Merit and reasoning aside, law enforcement can charge you, the accused, with the most minimal amount of evidence and corroboration while prosecutors can draft a legally sufficient complaint or information charging you with a drug crime in New York such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, based on nominal evidence. How can law enforcement sustain a charge of PL 220.03 so easily you ask? Because if the police say you possessed drugs and explain their reasoning in boilerplate language as to why they believe it’s a controlled substance, then barring any other infirmities the information (complaint) against you is legally sufficient and will likely overcome a motion to dismiss.
Whether its cocaine, Adderall, MDMA, ecstasy, heroin, suboxone, OxyContin, or any other controlled substance, New York law does not require any type of field test or laboratory analysis at the first stages of prosecution to confirm the substance is in fact what the police allege it to be. That’s right. Drafted correctly, if law enforcement merely alleges that the substance is drug X and the police officer or detective identify it as such based on their training and experience, the very low bar is likely surmounted to sustain a legally sufficient complaint. Throw in that the packaging is consistent with this type of controlled substance, the smell is indicative of drug X, and some other characteristics, your arraignment court will find that legally sufficiency has been met. Simply, if and when the case goes to trial then the District Attorney can provide a chemical analysis to overcome the proof beyond a reasonable doubt burden. While it may be of little consolation to a person who has “beat drugs,” or is adamant that the drugs in their possession are not what the police alleged, the “training and experience” conclusion by law enforcement, as long as articulated properly, can keep an accused wrapped up in the criminal justice system until if and when a laboratory analysis controverts law enforcement’s conclusion.
While People v. Kalin, 12 NY 3d 225 (2009) established the rule that observations and conclusions based on training and experience are enough to establish a prima facie case, know that all hope is not lost. In fact, far from it. Yes, the District Attorney will ultimately need a laboratory analysis of the alleged cocaine, heroin, etc., but whenever property is taken from your person or in an area where you have both dominion and control, your attorney will likely seek a Dunaway and Mapp Hearing to both challenge the probable cause of your arrest and the legality of the search and seizure. Even if this angle does not seem like a viable defense, first time offenders in New York can potentially avoid a criminal or even on-criminal conviction with the right advocacy. Simply, there are numerous ways to attack a criminal case in addition to whether the complaint against you is legally sufficient.
At bottom, the legal sufficiency standard is quite a low one. In New York, the law is clear that with an explanation of their training and experience, law enforcement can meet their burden without a chemical analysis. Know that as upsetting as that may be to you, as an accused, your counsel can make a demand for the analysis and nothing prevents him or her from challenging the case in other areas or, when necessary, mitigating your conduct to lessen your exposure. Will you beat the case in its entirety? Will you pursue a different course of action? Ultimately, once armed with an understanding of New York criminal procedure and law, you and your attorney can implement the best and strongest defense.
To learn more about New York drug crimes, including misdemeanor Seventh Degree Criminal Possession of a Controlled Substance, review the links above.
Crotty Saland PC is a New York criminal defense law firm founded by former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland PC represent clients in all stages of criminal litigation.