Articles Posted in Drugs and Narcotics

New York, like all other states, has its own means to determine whether individuals can be arrested and charged as co-defendants for a particular crime. Obviously, merely being present when a crime is committed by another person is not legally sufficient enough to establish guilt beyond a reasonable doubt (although, do not be shocked if you are arrested and later have to fight to have the matter dismissed). Because presence alone is not enough, what do New York criminal defense attorneys review to determine if an accused’s conduct reaches the level of acting in concert or accomplice liability in any New York arrest?

Addressed in the context of a marihuana (marijuana) sale, In People v. Ramirez, 2013NY046507, NYLJ 1202624767720 (Crim., NY, Decided September 27, 2013), a separately-charged individual sold marihuana to an undercover officer and then, according to another police officer, that individual handed money to the defendant as “part of the above-mentioned transaction.” Afterward, a police officer attempted to place the defendant under arrest, but the defendant ran 1-½ city blocks, refusing to be handcuffed. The defendant’s actions resulted in the arresting officer sustaining injuries. Subsequently, the defendant was charged with Criminal Sale of Marihuana in the Fourth Degree (New York Penal Law 221.40), under the theory he acted in concert with or as an accomplice to the separately-charged individual (the principal), and Resisting Arrest (New York Penal Law 205.30). While the defendant made a motion to dismiss both charges, the court only dismissed the marihuana crime.

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What is a “molly” or “Molly”? Yes, it is a drug and some form of narcotic or controlled substance, but how does that translate into New York criminal law? Must you sell a molly or is mere possession of a molly enough to be arrested and convicted of a crime? Simply put, while selling a molly (it is actually ecstasy or 3,4-methylenedioxy-N-methylamphetamine) is no doubt a felony (note, money need not be exchanged for a felony sale to transpire according to New York criminal law), possession of a small amount for “personal use” is considered a misdemeanor offense. That crime, Criminal Possession of a Controlled Substance in the Seventh Degree, is an “A” misdemeanor. New York Penal Law 220.03 carries a possible sentence of up to one year in jail. If your arrest (this includes a Desk Appearance Ticket or DAT) is in New York City – Manhattan, Brooklyn, Queens or the Bronx – and you are sentenced to any time in jail, you will spend your time on the beautiful Rikers Island. You need not take my word on this issue. Ask any New York City criminal lawyer or New York drug crime attorney.

As insignificant as possession of ecstasy or a molly may seem to be, in the eyes of prosecutors, judges and those involved in New York’s criminal justice system, there is no difference between the possession of ecstasy and heroin or cocaine. Mere possession, even without any significant weight or amount, violates NY PL 220.03 as described above. Although I am not currently aware of any changes in the policy of District Attorneys Offices in the New York City area, it would not be shocking that even first time offenses are examined more closely and scrutinized since the overdose deaths during the Electric Zoo festival in Manhattan.

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The ease by which the police can arrest and Assistant District Attorneys can prosecute denizens of New York City (or any municipality in New York State) for drug crimes can be greatly concerning. Merely because one is a New York drug lawyer or a New York criminal defense attorney should not give one permission to be blind to the serious consequences of the drug trade and use. With that in mind, however, more than one person has been accused of a narcotics crime such as Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03), based on weak or wrong evidence.

For better or worse (which need not be debated here), the law formerly required that a prosecutor provide a laboratory test result or a field test from the police to move forward with a narcotics or drug criminal case beyond the initial arrest. Without this corroboration, the complaint against an accused drug user or seller would contain hearsay. Now, as a result of People v. Kalin, “the sworn allegations by the arresting officer [that the substance in question was a drug are] sufficient to satisfy the requirements of an information.” Simply, an officer, while not compliant with the “old law,” may state that based on his observations, training and experience, the substance in question is a particular contraband. Upon doing so, the complaint becomes an information without any scientific analysis of the alleged drugs. Again, while we need not debate the merits of this case and law, it is clear to even the untrained eye that an officer can be completely wrong as to the nature or presence of a controlled substance, but an accused will still be arrested and prosecuted for a crime he or she did not commit.

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The vast majority of those involved in New York’s criminal justice system, from the officers serving the NYPD and Assistant District Attorneys to judges and criminal defense lawyers, would likely not place marijuana (“marihuana” in the New York Penal Code) in the same realm of contraband such as heroin, cocaine and other controlled substances. While there certainly could be many vigorous debates on the legalization of marijuana, the bottom line is that possessing certain aggregated quantities or possessing any amount of marihuana in public is a crime. The question that arises in some circumstances, however, is not whether possession is illegal, but how dangerous that possession of marijuana can be.

Although the debate over marijuana’s dangers makes for great dinnertime conversations, “danger” or “dangerous” is not an element of Criminal Possession of Marihuana. That’s right. Prosecutors need not prove beyond a reasonable doubt that Mr. Green Leaf is dangerous in any capacity. That is not to say, however, that “danger” is not always irrelevant. When marihuana possession is the central evidence or underlying criminal activity in an arrest for Promoting Prison Contraband, the degree of “danger” is critical.

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Although wrongfully classified by many people as a narcotic drug crime, arrests in New York City and throughout the State of New York for possession of a marijuana (or marihuana as it is referred to in the New York Penal Law) are a distinct and separate category of crime. Criminal Possession of a Controlled Substance crimes, unlike Criminal and Unlawful Possession of Marijuana, are much more broad as they include an enormous spectrum of drugs ranging from cocaine to heroin and more “trendy” contraband such as ecstasy. Regardless of the drug, if you possess one of these substances you would be charged with Seventh Degree Criminal Possession of a Controlled Substance (New York Penal Law 220.03) as long as you lacked the intent to sell the substance and the weight was not classified as felonious. It makes no difference if the drug is in your hand and open to public view or buried in your pocket. Just ask any person arrested outside a Phish concert at MSG in Manhattan or at a Disco Biscuits concert right around the corner.

Unlike controlled substances, marihuana crimes in New York (or more correctly the crimes for which you are arrested and charged) relate directly to how you possess the contraband.Obviously, weight is relevant when ascertaining if the crime is a felony or misdemeanor, but the vast majority of offenses are defined by how the marijuana is possessed.

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New York drug crimes and the former “Rockefeller Drug Laws” were, and currently are, some of the strongest criminal laws on the books. In fact, New York drug attorneys and New York criminal lawyers often face down sentences where clients may be looking at mandatory imprisonment. For example, if you possess certain weights of drugs or you sell even an insignificant and personal use amount of cocaine (one might rightly argue there is no such thing as insignificant), you will face a presumptive minimum of one year and a maximum of nine years in state prison. While a first time offender convicted for Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law 220.39) or Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law 220.16) faces significant incarceration, even lesser offenses can carry similar punishment.

Regardless of the crime and sentence one may face for a New York drug crime arrest, those accused of these crimes may be pawns in a bigger scheme or otherwise good people who have been caught up in a terrible situation. Not only is it incumbent upon your criminal lawyer to advocate as strongly as possible, but it is equally important for him or her to ascertain whether the best defense to your New York City or suburban drug arrest is to challenge the legality of searches, probable cause and other evidence or to mitigate the conduct for which you are accused.

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In substance, New York Penal Law 178.10, Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, prohibits one from knowingly transferring a prescription medication in exchange for anything of value if the individual should have reasonably known that the recipient had no medical need for the medication. This Fourth Degree Criminal Diversion is an “A” misdemeanor and is punishable by a year in jail. For many individuals arrested for NY PL 178.10, whether or not a jail sentence is served is secondary to the potential of being forever saddled with a criminal record even if he or she never steps foot inside a jail cell. Whether a misdemeanor criminal conviction will lead to a termination of employment, a loss of a professional license or certification or cause a myriad of long term collateral issues, properly handing a New York Criminal Diversion of Prescription Medications arrest or charge is critical. While no Criminal Diversion attorney or New York drug lawyer can guarantee a particular defense will ever work, covering each and every base will certainly increase your likelihood of success when challenging the charge against. The following case is an example of this approach where the charge of New York Penal Law 178.10 was ultimately dismissed due to a failure of the prosecution to establish reasonable cause that prescription medication was actually transferred.

In People v. Tracey Dubois, 2012NY020323, NYLJ 1202558131222, at *1 (Crim., NY, Decided May 25, 2012), the police arrested and charged Dubois with violating New York Penal Law 178.10 after he allegedly sold the prescription medication Vistaril (hydrazine hydrochloried) to another individual. In support of the arrest and charge, the New York City police officer claimed that he observed Dubois transfer a small object to another individual in exchange for money. Additionally, the police officer further asserted in the complaint that after a pat-down, his sergeant found a bottle containing nineteen (19) pills of Vistaril in Dubois’ front right pants pocket. Furthermore, the officer contended that Dubois told him in substance the pills were prescription sleeping pills and that he saw an opportunity to sell them. Dubois moved to dismiss the charges against him on the grounds that the facts failed to provide enough evidence to support he had committed the crime of Criminal Diversion of Prescription Medication in the Fourth Degree.

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There are few things more frightful and concerning than being arrested in a nation where you do not reside. Compounding matters, because the United States has a unique criminal justice system, you may not have any idea about the arrest process and what you may face whether you were charged with a crime in New York City (Manhattan, Brooklyn, Queens, etc.), White Plains or some other jurisdiction. Not only will you have to contend with collateral immigration issues of your arrest such as how to renew your visa (if you can), what will you do if you plan on leaving New York and returning home before your case is resolved? For example, if you are issued a Desk Appearance Ticket (DAT) to return to Manhattan Criminal Court weeks after you go back to your home nation, how will you avoid a Bench Warrant from being issued and an arrest upon your return to the United States? Even if you wanted to stay and fight your case, what will happen if you overstay your visa?

Before addressing the issues mentioned above, please note that this blog entry merely addresses misdemeanor crimes in New York and not felony offenses in the context of an arrest of a foreign national. Not only are felony crimes much more serious, but these crimes have a separate set of procedural rules that may not be applicable to their misdemeanor brethren. Having addressed that, some of the more common misdemeanor arrests that foreign nationals face and those I have defended against as a New York criminal lawyer have been shoplifting (Petit Larceny – New York Penal Law 155.25 and Criminal Possession of Stolen Property in the Fourth Degree – New York Penal Law 165.40), possession of drugs such as cocaine, heroin or other controlled substances (Criminal Possession of a Controlled Substance in the Seventh Degree – New York Penal Law 220.03), jumping a turnstile or failing to pay a cab driver (Theft of Services – New York Penal Law 165.15) and possession of a marijuana joint or pipe open to public view (Criminal Possession of Marijuana – New York Penal Law 221.10). Far from an exhaustive list, if you, as a foreign national, provided a local address, the NYPD officer who arrested you may have given you a Desk Appearance Ticket (DAT) for your return to court on a future date. You will not be processed through “the system” in the same manner as if you committed a felony or a similar misdemeanor without establishing ties to New York City.

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Drug arrests for Criminal Possession of a Controlled Substance in the Seventh Degree, New York Penal Law 220.03, may come in the form of a Desk Appearance Ticket (DAT) or a full 24 hour processing through the system. No matter how you were arrested, however, there are certain mandatory requirements that must be within the four corners of any criminal court complaint. Similar to arrests for marijuana, NY PL 220.03 arrests in Manhattan, Brooklyn, Queens, or any other county in New York City or New York State, involve the possession of certain “banned” drugs such as cocaine, heroin, ecstasy and other narcotics. Irrespective of that controlled substance, in order for prosecutors and Assistant District Attorney’s to have a viable and legal complaint against you, language in that complaint (actually called an “information” once it is legally sufficient), must reflect “proof” that the drugs in questions are in fact drugs. Anyone can merely guess based on appearance or smell, but the law requires more than mere speculation.

The law involving drug possession crimes (whether NY PL 220.03 for controlled substance or NY PL 221.10 for marijuana) definitely favors the prosecution. Years ago, before People v. Kalin, 12 NY3d 225 (2009), courts required that a laboratory analysis or field test be filed with a criminal court complaint in order to remove any legal impediments preventing the prosecution from proceeding with criminal charges. In other words, if prosecutors failed to provide a lab report or field test confirming the presence of heroin, cocaine, ecstasy or marijuana, a defendant would ultimately be able to obtain a procedural dismissal of the charges. As noted above, Kalin altered this rule by permitting the police, when drafting a complaint or signing off on its accuracy, to assert that the drug or marijuana recovered was that particular contraband based on their observations, training and experience (or some combination of this).

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You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are “searched incident to your lawful arrest” where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple “nothing” case evolve into something so serious…

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

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