New York’s Marijuana Regulation and Taxation Act, aka, the MRTA, ushered in a new era for the legalization of marijuana (previously codified as “marihuana”). What it did not do, however, was create a carte blanche permission slip for every resident of or visitor to New York City, or one of its surrounding suburban municipalities such as those dotting Westchester County, to unfettered cannabis possession or sale. In fact, it established a new article of the Penal Law that practically supplants marijuana’s old Penal Law Article 221. With the codification of Penal Law Article 222, District Attorneys will now prosecute, and criminal lawyers defend, sections 222.25, 222.30, 222.35, 222.40, 222.45, 222.50, 222.55, 222.60, and 222.65. Sound like a lot? Well, from non-criminal violations to life alteringly grave felony offenses, it certainly has the potential to be quite significant even if not on par with some of the more serious controlled substance and prescription medication crimes.
When the Marijuana Regulation and Taxation Act, or MRTA, becomes the law of New York State, the legalization of marijuana, or marihuana as previously written in the Penal Law, will usher in many changes to the criminal law. From establishing the New York State Cannabis Control Board and the Office of Cannabis Management, to memorializing who and how one can lawfully possess, plant, and sell, cannabis, the MRTA will set the course for the future all things cannabis. In terms of the criminal law, as Article 221 is reduced to a shell of its former self and is somewhat replaced by the new Penal Law Article 222, prosecutors, criminal defense attorneys, and both residents in and visitors to the Empire State will find themselves under the thumb of a new code criminalizing the illegal possession and sale of cannabis while also setting the parameters for the lawful production and distribution of the same. Before addressing these new crimes, however, it is critical to first have a basic working knowledge of some concepts and definitions found in the law.
I’m looking to buy some Percs, Zanz, Blue Bus or White Girl Study Buddies. Where can I get some Blue Bars, Oxy or something more “exciting” like Ski, Tina or M30? Whether you want to buy or sell Ritalin, Adderall, Xanax, Heroin, Cocaine, Suboxone, Ecstasy, Percocet, Crystal Meth, or just about any other prescription drug, controlled substance or narcotic, Craigslist and other online forums including Reddit can not merely point you in the right direction, but serve as your online pharmacy of substance abuse. As sneaky as Craigslist pharmacists think they may be by placing “no law enforcement” or “I’m not a cop” in their advertisement, the posts are as brazen as they are inviting to law enforcement and prosecutors.
As a criminal defense lawyer representing clients in drug crimes involving unlawful prescription drug sales and possession, its is my duty to represent a client to the fullest of my ability regardless of the accused conduct. After all, the burden always remains on the prosecution to prove a case beyond a reasonable doubt. Every accused has due process rights that, regardless of the allegation, must never be violated. However, know that it is not my job to also serve as your parent and give you a proverbial pat on the back. An apologist for illegal conduct I am not. While the best defense is abstaining from using, buying, distributing or selling drugs and controlled substances, knowledge of the New York Penal Law, even after the fact, can assist in identifying and implementing the strongest defense to avoid the full force of New York’s criminal justice system.
Whether you are at the Electric Zoo Festival on New York’s Randall Island, rolling with Phish at Manhattan’s Madison Square Garden, or you are merely out and about in New York City, Westchester County, Rockland County, or anywhere in the State, if you possess or sell MDMA, Molly or Ecstasy you potentially face an arrest for either a misdemeanor or felony crime. As your criminal lawyer will explain, mere possession of Ecstasy, even one pill, violates New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. Depending on the quantity in your possession and whether you have the subjective intent to sell the Ecstasy, you could also face felony crimes including Third Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.16. Complicating matters, when you actually sell Molly, MDMA or Ecstasy in New York, the crime you face is by default a felony. Assuming the weight of the controlled substance is less than one gram, meaning just one pill, then you would be charged with New York Penal Law 220.31, Fifth Degree Criminal Sale of a Controlled Substance. If the weight of the Ecstasy, MDMA or Molly exceeds one gram, then the applicable arrest charge is New York Penal Law 220.39 assuming this sale did not occur on school grounds. This crime is Third Degree Criminal Sale of a Controlled Substance. When the weights exceed those here and as outlined in the New York Penal Law, the criminal offenses for criminal possession or sale are significantly more serious.
Because of the above exposure, any arrest, whether by Desk Appearance Ticket or felony complaint, requires immediate and professional attention. Sometimes, investigation and advocacy from the onset of an arrest can provide tremendous benefits as the matter makes its way through the criminal justice system. Fortunately for three recent clients of Crotty Saland PC, despite their arrests for selling Molly to undercover police officers at the Electric Zoo, they took immediate action to retain a criminal lawyer and fight their respective arrests for PL 220.31 head on as they worked their way towards an ultimate dismissal on the merits.
The prescription drug epidemic may not be as rampant as the crack and cocaine abuse in the 80s and 90s, but it is no less harmful and frightening. Whether a drug is Oxycodone, Xanax, Hydrocodone, Adderall or some other prescribed controlled substance or narcotic, the potential harm to the abuser, his or her family and the community-at-large is great. Because of this, law enforcement from the NYPD in New York City to smaller police departments, as well as the District Attorneys prosecuting crime in the associated jurisdiction, have sought to disrupt the illegal trade and sale of these drugs. That is where the crime of Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law Article 178, becomes part of law enforcement’s arsenal to combat the illegal sale, possession and trade of prescription drugs.
This blog entry will identify and address the differences between the varying degrees of Criminal Diversion of Prescription Medication – NY PL 178.10, NY PL 178.15, NY PL 178.20, NY PL 178.25 – and potential punishment associated with each crime.
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.
Though the topic of drug crimes often conjures thoughts of sales, trafficking, or even mere possession of illegal substances, there is another important category of offense that is regularly prosecuted in New York courts. In fact, you may have been arrested an issued a Desk Appearance Ticket, or DAT, for this crime in addition to possessing a controlled substance or marijuana. What is this offense you ask? Second Degree Criminally Using Drug Paraphernalia, New York Penal Law 220.50.
Second Degree Criminally Using Drug Paraphernalia is classified as an “A” misdemeanor and is capable of producing serious consequences for those convicted of doing so, but understanding the law and the statute is your first step in protecting your future.
You’ve taken responsibility and paid your dues. It now begs the question. Can my misdemeanor conviction be sealed? Can my drug arrest be expunged? Is there a statute in New York to clear my criminal record? Its been years, even decades, since my arrest, conviction and sentencing for Seventh Degree Criminal Possession of a Controlled Substance in New York. How do I now get a conviction for New York Penal Law 220.03 vacated, cleaned, washed away, expunged, sealed or any other relief to keep my past from destroying my future? As you can discuss with your criminal defense attorney and conviction sealing lawyer, whether you were convicted by a plea of guilty or by a jury of your peers, simple possession of cocaine, crack-cocaine, heroin, or any other controlled substance can be sealed from your record with a motion to your sentencing court in accordance with New York Criminal Procedure Law 160.59.
The types of drugs that routinely flow through New York City and throughout other New York municipalities range from unlawfully possessed prescription drugs such as Oxy and Adderall to the more common cocaine, heroin, MDAM, Ecstasy and Molly. The law is generally clear and a criminal defense attorney you need not when determining what controlled substances you can (or cannot) possess. For that matter, you neither need a drug lawyer nor your mother to advise you that you can’t have any of these narcotics barring a prescription (or at all) unless your goal is trying to violate a New York drug crime.
You may enjoy getting hopped up, rolling, taking a bump or just getting annihilated and, by all means, that is your decision. It is not my job, as a criminal lawyer, to be your father and lecture you on the ills of drug use and abuse. Its my job to help you when you call me panicked after your arrest. That said, before doing so, just hear me out. Know that there are very real consequences to your actions well beyond those that may land you in handcuffs and before a judge.
Brief pseudo-lecture aside, the purpose of this blog entry is not to address the direct and collateral consequences to drug use and arrests in New York, but to make it clear how low the threshold is for prosecutors to proceed on criminal charges when you are accused of violating New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. In fact, as this blog will make clear, neither Assistant District Attorneys nor police officers need to actually test the drug in any capacity to draft a legally sufficient complaint charging you with this drug crime. What does this mean to you? The law can take you right past Go and directly to Jail in the game of Monopoly that has unfortunately become your life.
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.