Drug, controlled substance and narcotics crimes in New York may not be punished to the same magnitude as the Rockefeller Drug Laws of the past, but any New York Penal Law Article 220 crime in New York City or in a suburban New York State county still carries a significant punishment. Where a person is charged with a “B” felony possession of a controlled substance with the intent to sell (New York Penal Law 220.16, Criminal Possession of a Controlled Substance in the Third Degree), the sentence for a first time offender is one to nine years in a New York State prison. If the potential for years of prison and incarceration was not enough, a permanent ‘”scarlet letter” of a felony drug conviction may be enough to scare any young man or woman straight. Although all of us expect to stay far from the mistakes that could land us with a Criminal Possession of a Controlled Substance or Criminal Sale of a Controlled Substance arrest or conviction, nobody is perfect. In fact, even if we never possess cocaine, heroin or any other controlled substance, its possible for prosecutors and police officers to still attempt to hold us accountable for the actions of others. Yes, being in the wrong place at the wrong time can be the basis of an arrest, prosecution and criminal conviction in the world of narcotics. One such provision of the New York Penal Law that allows this, NY PL 220.25(1), permits a finder of fact to presume that all people in a vehicle knowingly possessed controlled substances found therein as long as the drugs were not on a specific person. Unfortunately, this is the scenario a Saland Law PC client found himself in having no knowledge of any drugs in the car where he rode as a passenger.
Saland Law PC’s client, a high school student, was a passenger in a vehicle along with four other individuals. Not the driver, our client was initially alleged to be in the back seat of a car where a bag containing 71 pills of Xanax (alprazolam) and a half a pound of marijuana was recovered. More specifically, the NYPD and District Attorney’s Office claimed that our client was sitting next to an open bag containing these controlled substances and contraband. Further, after allegedly pulling the vehicle over for failure to signal, the police asserted that the car smelled strongly of marijuana prompting them to look inside the vehicle where they found the open bag.
Relying on the car presumption that all passengers in the vehicle constructively possessed the drugs that were in the open bag and the claimed fact that the car smelled from marijuana, prosecutors offered each of the four defendants, including Saland Law PC’s client, a plea to a misdemeanor Seventh Degree Criminal Possession of a Controlled Substance (NY PL 220.03). Three of the four defendants accepted this offer. To sweeten the deal, prosecutors presented an opportunity for these misdemeanor pleas to be reduced to Disorderly Conduct after one year with a little jumping through hoops. Our client did not accept this offer and maintained his innocence.
Over the course of the following month, Saland Law PC’s criminal lawyers argued that the presumption relied upon by prosecutors was certainly rebuttable and one that a Grand Jury or trial jury need not follow. Additionally, if not more importantly, we established that our client was picked up later in the evening, was not sitting in the back seat next to the bag (our client was a front passenger), had not significant money or other drugs (no indicia of sale or possession), made no inculpatory statements and simply was unaware what was in the back seat. As a matter of fact, he had no knowledge of the 71 pills of Xanax in a plastic bag inside a backpack in the back seat of a car. If our client was aware of the marijuana odor, the other three individuals could have been smoking prior to our client entering the vehicle. Moreover, there is no presumption for the marijuana like that for controlled substances. In substance, all that prosecutors had in their favor was this legal presumption where our client was never directly in contact with or acknowledged possession of the Xanax or marijuana. Coupling these facts with our client’s clean history and age, our criminal attorneys advised that if prosecutors wanted to proceed, our client would testify in the Grand Jury. Moreover, while not standing on a soap box, we strongly maintained that the District Attorney’s Office did not want to go to the Grand Jury or to trial (assuming the case survived the Grand Jury) on a legal presumption with no direct evidence of possession or knowledge where three co-defendants including the driver and backseat passengers already pleaded guilty.
After some time, prosecutors agreed to offer (technically move) for an Adjournment in Contemplation of Dismissal or ACD pursuant to Criminal Procedure Law 170.55. As such, without admitting any guilt, the client was offered a deal that resulted in a dismissal after six months as well as a sealing of the case. Further, pursuant to subsection eight (8), our client’s underlying arrest would become a nullity. While our client maintained his innocence throughout the case, the risk, time and cost of potentially going to trial on a charge of PL 220.16(1) compared to resolving the case quickly and without a criminal record was too great.
To learn about New York drug and controlled substance crimes, including those involving cocaine, heroin, and Xanax, review any of the links found above of go to the websites and blogs below.
Founded by New York criminal lawyers and former Manhattan prosecutors, Saland Law PC represents clients in criminal investigations, arrests and trials throughout the New York City area.