Articles Posted in Drugs and Narcotics

During the day you are a lawyer, work in finance, a licensed real estate broker, or a school teacher. Maybe you’re a stay-at-home mom or you’re just figuring out what the heck you want to do with your life with your BA in History from Generic State University. Reliving your glory days in college pretending the babysitter isn’t at home with your kids or just trying your hardest to ignore the fact that you have a mortgage or rent payment coming up after the encore, what could be better than getting lost in the moment to Phish’s “Fluffhead” and “Harry Hood?” The real question, however, is not what could be better, but what could be worse? The answer? An arrest for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03.

On its face, going to see Phish certainly could be a release and even a religious experience, but you’re not a reckless college kid anymore (or maybe you are) and you weren’t fooling anyone “hiding” a baggie of cocaine, Molly, MDMA, ecstasy, marijuana or any other drug in your sock. It’s just like telling your parents you only had two beers. You didn’t. They knew that.

There are multiple standards throughout the different levels, stages and proceedings in a criminal case. For example, probable cause for an arrest in New York is far less than the proof beyond a reasonable doubt needed by the prosecution to secure a conviction at trial. Since the relatively recent (in terms of the history of the New York Penal Law and New York Criminal Procedure Law) acceptance that a laboratory analysis or field test is not needed at the initial pleading stage to establish a sufficient complaint in a criminal court for drug possession, there have been many legal challenges by those defendants charged with Seventh Degree Criminal Possession of a Controlled Substance.

New York Penal Law 220.03 makes it a crime to knowingly possess a controlled substance. Sounds fairly straight forward, but when you see your judge at our arraignment, what must the police officer alleged to support his position? Training and experience in identifying drugs? The packaging of the controlled substance? What about if the police officer hits up the internet and lands on a page such as Drugs.Com? Can law enforcement merely reference an online resource in concluding that you possess a particular drug without some sort of chemical test or an elaboration of his or her experience in identifying drugs? Read below for the answer.

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Although not exclusive to drug and marijuana crimes, otherwise fairly simple offenses such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, and Fifth Degree Criminal Possession of Marihuana, New York Penal Law 221.10, are often complicated when the police not only arrest a person for possessing heroin, molly, MDMA, adderall, oxy, cocaine, ecstasy, marijuana or any other drug, but also charge that person with an additional crime when he or she attempts to hide or dispose it before the police can get their respective hands on controlled substance. In these circumstances the NYPD or other local police department often charges the accused not only with the PL 220.03 or PL 221.10, for example, but also with either Tampering with Physical Evidence or Attempted Tampering with Physical Evidence, a class “E” felony and class “A” misdemeanor respectively. While the latter offense, New York Penal Law 215.40, is punishable by as much as four years in prison, an attempt to commit the same crime is “only” punishable by up to one year in jail.

Because both the police and prosecutors often charge a variation of PL 215.40 whether by Desk Appearance Ticket or Central Booking processing, a charge of Tampering with Physical Evidence is far from atypical. However, an arrest and charge does not automatically equate to proof beyond a reasonable doubt if at all. This blog entry will address the fairly common scenario where an accused merely throws to the ground, drops or discards the physical evidence in question and whether that rises to the level of either a completed or attempted Tampering with Physical Evidence crime.

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There are few worse things than being accused of a crime you did not commit. It really does not matter if you arrested for Aggravated Harassment, Assault, Criminal Possession of Stolen Property or any other offense. Arguably it is worse to spend a night in Central Booking than it is to be given a Desk Appearance Ticket in New York, but at the end of the day if you are arrested and prosecuted for something you did not do, then no matter the circumstances it is miserable experience. The above scenario recently played out for a client of Crotty Saland PC arrested for possessing cocaine in Manhattan. After the police arrested our client and prosecutors charged him with PL 220.03, Seventh Degree Criminal Possession of a Controlled Substance, our client had the “good fortune” of being given a DAT. From there, things went from bad to worse before the New York criminal lawyers at Crotty Saland PC secured an an outright dismissal for our client.

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I don’t think anyone would disagree. There are consequences for breaking the law. Just don’t do it. That said, all of us make mistakes. Good people commit crimes. No, not the most vicious and amoral offenses, but some of the lesser crimes that can still be life altering to the accused. This could not be more true than in situations where a foreign national attending college or a university to complete his or her studies at an American school is arrested in New York for what otherwise is a fairly small offense. In such situations, a $100 shoplift arrest in Queens, a Desk Appearance Ticket for possessing marijuana in Manhattan or even a dispute with a cab driver that ends in an arrest for Theft of Services in Brooklyn can all have major implications for an immigrant and foreign national in the United States. In fact, it is possible, and clients have come to the New York criminal lawyers at Crotty Saland PC dealing with this exact issue, that as a result of the mere arrest, their F1 or H1B visa is revoked. One such Crotty Saland PC client found himself in this predicament only days ago. Fortunately, the New York criminal defense attorneys at Crotty Saland PC rectified the situation in a timely manner to allow this client to secure the proper visa and legal status and return to the United States to continues his education.

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Whether you are a high school teacher, elementary school nurse, administrative staff or a paraprofessional, if you are employed by the New York City Department of Education (DOE) an arrest and prosecution raises numerous flags in both the criminal court and with the City of New York. Simply, any arrest –  misdemeanor or felony, through a Desk Appearance Ticket (DAT) or being hauled before a judge in criminal court – involves numerous moving pieces that you must address to preserve your career. Certainly, any arrest for any person is compromising. A shoplifting arrest in Manhattan where you are given a DAT for PL 155.25 or PL 165.40, a cocaine or other drug possession charging PL 220.03 in Brooklyn or even a turnstile jump or failure to pay a cab resulting in an arrest for PL 165.15 in Queens may not seem to be the most serious crime in the spectrum of New York City prosecutions, but to a DOE teacher or other employee, the concerns are real. Again, any arrest is compromising, but even if there is a limited likelihood for incarceration and you are not charged with an Assault, Grand Larceny or DWI, there are steps you must take in addition to those you are pursuing before the criminal court where you and your criminal defense attorney are fighting the allegations. To start, you should examine and review Chancellor’s Regulation C-105 that dictates the policy and management for arrests involving DOE employees.

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Years ago, when a detective or police officer signed off on a criminal court or misdemeanor complaint alleging misdemeanor drug or marijuana possession, PL 220.03 and PL 221.10 respectively, the law mandated that an Assistant District Attorney also secure a laboratory analysis or field test of the substance to proceed on that complaint so it become a legally sufficient information. In practical terms, if prosecutors failed to obtain a lab or field test, then ultimately the court would be required to dismiss the drug or marijuana possession charges against a defendant. Whether you agree that this was a necessity or not, criminal defense attorneys routinely used this law in the defense and exoneration of clients. Just as time stands still for no one, the law changes, shrinks, grows and adapts too. Simply, with some level of corroboration beyond a conclusion as to training and experience in the identification of drugs, controlled substances, narcotics and related “things” such as heroin, Ecstasy, cocaine, Xanax and marijuana, police officers can swear out complaints without a chemical test (it is ultimately needed in the event there is a trial). This became the “new” law that governed prosecutions after the Court of Appeals decision in People v. Kalin, 12 NY3d 225, 229 (2009).

The following blog entry addresses Kalin and the “training and experience” language not in the specific context of a drug arrest, but the possession of K2 in violation of Promoting Prison Contraband in the Second Degree pursuant to New York Penal Law 205.20(1). Although not dealing with the crime of Seventh Degree Criminal Possession of a Controlled Substance or Criminal Possession of Marijuana, People v. Enelus, 2016 NY Slip Op 51093  (NY City Crim Ct. 2016) has real value to cases involving these crimes because it examines the sufficiency of language contained in a criminal court complaint and information that enables or prevents a District Attorney from prosecuting a drug related crime at the initial pleading stage.

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The difference between possessing certain drugs in New York for personal use and possessing those same drugs with the intent to sell them is drastic. In fact, drastic would be an understatement. Ask any criminal lawyer in New York who handles narcotics or drug crimes and he or she will tell you the exact same thing. Whether the drug is molly, cocaine, heroin, ecstasy or whatever the drug du jour  might be, Criminal Possession of a Controlled Substance in the Seventh Degree is a misdemeanor with a potential sentence of up to one year in jail while Criminal Possession of a Controlled Substance in the Third Degree is a felony with a mandatory presumptive term of imprisonment of one year and as much as nine years. Simply, the misdemeanor, New York Penal Law 220.03, is not even in the same arena as the felony charge of New York Penal Law 220.16. For the purpose of this blog entry and for a general understanding of the elements of these crimes, PL 220.03 occurs where a person possesses a controlled substance while PL 220.16(1) is possession but also requires an intent to sell the cocaine, crack, heroin, molly, ecstasy or any other drug. A distinct crime, if you possess ketamine or oxycontin or Mesc, you will violate New York Penal Law 220.06(1), Fifth Degree Criminal Possession of a Controlled Substance. Before reading further, it is important to note that the possession of certain weights of drugs are automatically felonious. The relevant statutes and comparison here, as well as the review of a recent legal decision analyzing the difference, merely addresses the intent to sell element that enhances possession from a misdemeanor to a felony crime.

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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.

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While nobody is asserting that financial services professionals, investment advisers, registered representatives or others regulated by the Financial Industry Regulatory Authority (FINRA) are more prone to using, selling or possessing drugs, the reality is that an arrest in New York City or elsewhere for possession of cocaine, heroin, molly, MDMA, or even some prescription drugs can have dire consequences. Sale of these drugs (there need not be money exchanged) can magnify an arrest to a felony regardless of the amount. Simply, if you have a Series 3, Series 6, Series 7, Series 10, Series 11, Series 63, Series 65, Series 66, Series 79, Series 86 or any other securities license, your exposure is more than merely what you will face in a courtroom. Even when you close out your case there may be far reaching implications to your career. Although this blog entry will address the potential crimes and touch on the U4 reporting requirements, in no way is this article a substitute for a consultation with and the retention of a NY criminal defense attorney or criminal defense lawyer. Instead, the content contained here should solely be used as a launch pad to put yourself in the right place and to ask the right questions from your own counsel.

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