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Articles Posted in Drugs and Narcotics

Not necessarily relevant to every criminal offense found in the New York Penal Law, many arrests and crimes stem from what the police see in public or plain view. Whether officers with the NYPD or other local police agency stop your car and see a knife inside the vehicle from their vantage point or you’re walking down the street with a marijuana in your hand, the location of your criminal possession of cocaine, marijuana, or a firearm is often relevant not merely to the legality of your stop, arrest and search, but the crime itself. The following case involving an arrest for Fifth Degree Marijuana Possession, NY PL 221.10, is an example of this element and how a criminal complaint against you must be drafted in order to survive (or not survive) a motion to dismiss by your criminal defense attorney.

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If there are drugs found in your Manhattan apartment and you are inside that apartment, you are guilty of possessing those drugs, correct? If the police execute a search warrant and you reside in the in the Brooklyn home where drugs, such as cocaine, heroin or marijuana are found, you are guilty of possessing those controlled substances, right? After all, the police found the contraband in your apartment so you must be responsible. If the amount is fairly small of a controlled substance then there is no reason why the police should not arrest you for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03. If the police believe you had the intent to sell the cocaine, heroin or other drug then they should arrest you for intending to sell those drugs pursuant to Criminal Possession of a Controlled Substance in the Second Degree, New York Penal Law 220.16. To give you some perspective on these crimes, PL 220.03 is an “A” misdemeanor punishable by a year in jail and PL 220.16 is a “B” felony punishable by one to nine years in a New York State prison. For good measure, let’s add some more perspective to the questions asked above. Your mere presence, without actual possession, may not be enough for the prosecution to sustain any criminal charge against you. Obviously you should consult with your own New York criminal lawyer or criminal defense attorney versed in drug crimes, but the following analysis of a recent court decision is right on point.

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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.

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Selling adderall online on sites such as Craigslist is an extremely serious drug felony in New York. For that matter, selling adderall or other controlled substances to an undercover cop or any other buyer online or in person is criminally devastating. It is of no consequence whether or not you have a prescription for these “study aids” or not. At its core, an illegal drug sale is an illegal drug sale. If you are arrested in New York for selling “Pep Pills,” “Beans,” “Uppers” or any amphetamine or dextroamphetamine, you certainly will receive a boost in clarity coming from your jail cell, a prosecutor, the judge and even your criminal defense lawyer. What will be clear, however, is not  the upper you get from ingesting adderall, but the reality that you now face one to two and a half ( 1 to 2.5 ) years in prison followed by one year post release supervision as a individual without any criminal history at all. Broken down to the simplest level, an arrest, indictment and conviction for Criminal Sale of a Controlled Substance in the Fifth Degree, New York Penal Law 220.31, is a crime that can, and often does, lead to a combination of incarceration, probation, and destruction of careers and livelihoods. How you implement your defense and the strength of that defense will decide if you are able to walk away unscathed, reduce the crime you are charged with or spend time “upstate.”

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It is likely not lost on your criminal attorney or New York criminal defense lawyer. The same can certainly be said about the undercover police officer who purchased “study aids” from you after seeing your advertisement on Craigslist. Even more concerning, it is likely not the prosecutor’s (Assistant District Attorney) or the judge’s first rodeo fighting controlled substance crimes in New York. Simply, the felony sale or possession of Adderall, and a subsequent arrest or indictment for Penal Law 220.06 or Penal Law 220.31, has the potential to absolutely destroy your future. You need not be pitching crack on a corner or cocaine at high class function to feel law enforcement’s weight on your shoulders. Whether or not you sold one pill (or 50), search warrants were executed at your residence or you were found to be in possession of prerecorded buy money (the cash with matching serial numbers provided by detectives or the police during an alleged purchase), you will face as much as one to two and one half years in prison followed by one year post release supervision. If convicted, this criminal record will be here to stay.

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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 Saland Law 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.

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Whether you are arrested for allegedly possessing a drug such as heroin or cocaine, a weapon including a gravity knife or firearm, or some marijuana, the contraband the police claim you possessed may not have been on your person. That is, you are being charged with PL 220.03 (drug possession), PL 265.01 (weapon possession) or PL 221.10 (marijuana possession), but the police did not see or recover the contraband from your hand, pocket, body, etc. The law is clear in these circumstances. Assuming the allegations in the complaint against you are sufficient (the elements must be proven beyond a reasonable doubt if and when there is a trial), prosecutors can push forward in a case regardless if your possession was considered actual or constructive.

Although you will have a much further in depth consultation with your own New York criminal lawyer who will explain the different types of possession to you, the difference between actual possession and constructive possession is fairly obvious. One is on your person and the other in an area where you have dominion and control. In other situations, even though your possession was not physical, if the contraband is in plain view or in a car, a legal presumption of your knowledge and possession may be attributed to your case.

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One of the fairly common calls we receive as New York criminal lawyers and New York criminal defense attorneys revolves around misdemeanor marijuana (“marihuana” in the New York Penal Law) arrests. The questions run the gamut. I received a New York City Desk Appearance TIcket for PL 221.10, have I been arrested? I received a Desk Appearance Ticket in NYC for marijuana possession, but the police recovered the marijuana from the ground (or it was in another person’s hand), how can they charge me with it? Why am I being charged with Criminal Possession of Marihuana when the police only got it from my pocket? It wasn’t like it was in my hand or I was smoking it! Why did the police search my car? They claim the marijuana was in the cup holder, but it was in the glove compartment they searched illegally! I could continue, but I believe you understand my point. Although only marijuana and not cocaine, molly, a firearm or something more serious, arrests for PL 221.10 – whether by Desk Appearance Ticket or full on processing – is traumatic.

Whatever your questions may be, the conversation as New York criminal lawyer and potential client routinely turns to what, if anything, a criminal defense attorney can do for the accused pot smoker (or possessor). First, I generally explain to my potential clients that despite their fears, barring some extraordinary circumstances, jail is not on the table (technically it is possible). Second, despite the fear other attorneys may try to instill in potential clients to convince these clients to hire them, the reality is that as a first time offender who did not resist arrest or obstruct the officers, things may not be so bleak (of course, “bleak” is a relative term).

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The concerns of a person arrested for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, are many. If you are doctor, accountant, teacher, lawyer or financial services professional, what will happen to your license or certification? Beyond the initial scare and concerns, what are your potential sentences and punishment? For those who are not American citizens and here on visas – work or student – how will your arrest impact your future. Desk Appearance Ticket or full on arrest through central booking, dealing with the uncertainty and legitimate concerns of your arrest for cocaine, heroin, molly, ecstasy, or any controlled substance is something to address with your criminal lawyer.

Outside of these collateral, secondary and sentencing issues, another topic, and arguably the first one, you will discuss with your criminal lawyer or criminal defense attorney will be how you can challenge your arrest and DAT (also called an appearance ticket) for PL 220.03 in New York City. Sure, you will address why the police stopped you and how it came to be that you were searched, but another issue may be whether or not the controlled substance or narcotic in question is in fact a drug – heroin, cocaine, molly, etc. While the good news is that the prosecution has the burden to prove this element (and every) beyond a reasonable doubt, that bad news i that in the past few years the law has evolved (or devolved) to the point where an officer can make a determination without conclusive evidence from a field test or laboratory analysis. Hey, you may have purchased bogus drugs before you entered a concert, but he courts will find the complaint against you sufficient based on the assumption of a police officer. Sadly, the following two cases illustrate how the law favors the law enforcement and not the potentially wrongly accused.

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The cornerstone to any arrest in New York for the possession of a controlled substance – cocaine, heroin, molly, ecstasy – is arguably first and foremost that you actually possessed the drug, narcotic or controlled substance in question. If that is not the first hurdle that prosecutors in Manhattan, Brooklyn, Queens, Bronx, Westchester or Rockland Counties must overcome, it is likely the second. Equally important to any drug possession arrest is that the substance you possessed is in fact a controlled substance and not “beat drugs” or marihuana / marijuana (marijuana crimes are prosecuted differently than controlled substance crimes in New York). This blog entry will address what prosecutors and police must articulate or state in a complaint to establish legal sufficiency in your arrest for New York Penal Law 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree, in the context of possession.

Although this blog entry on NY PL 220.03 arrests will not address all of the elements of “personal use” drug possession and only analyze the actual possession, to understand any defense your criminal lawyer may assert in challenging a Seventh Degree Controlled Substance arrest or Desk Appearance Ticket (also called a “DAT”) you must grasp the crime of PL 220.03. A person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle.

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