Close Proximity to Drugs: Dismissal of PL 220.03 Arrest Charges for Vagueness of Possession

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.

With the definition behind us, let’s now look to People v. Kenneth Glassman-Blanco, 2010-1471 K CR, NYLJ 1202634715715, at *1 (App. Tm. 2nd, Decided December 9, 2013). In Glassman-Blanco, the police and prosecutors charged the defendant with drug possession in violation of NY PL 220.03 after his arrest. Although the defendant pleaded guilty to Disorderly Conduct (a violation and not a crime), he later challenged the sufficiency of the complaint against him. The defendant’s argument was not that the drugs were legal or not controlled substances, but that the allegations did not satisfy the element of possession.

In holding the defendant accountable for drug possession, the complaint (information) against the accused merely alleged that the controlled substance was recovered “inside [a specified address] next to where the defendant was situated.” Arguing that the description of where the drugs were recovered was too vague the Court found that the complaint “fail[ed] to demonstrate reasonable cause to believe that defendant physically or constructively possessed a controlled substance… An allegation of constructive possession in a complaint must include facts of an evidentiary nature demonstrating reasonable cause to believe ” ‘that the defendant exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband [was] found or over the person from whom the contraband [was] seized’ ” (People v. Aveni, 100 AD3d 228, 244 [2012], lv granted 20 NY3d 1059 [2013], quoting People v. Manini, 79 NY2d 561, 573 [1992], quoting Penal Law §10.00 [8]). A defendant’s presence in a public place, by itself, is insufficient to demonstrate reasonable cause to believe that the defendant exercised dominion or control over the contraband (People v. Pearson, 75 NY2d 1001, 1002 [1990]).

Using the above legal decision and prior cases to direct its rationale, the Court further stated that nowhere in the complaint was there a specific indication of where the defendant was in proximity to the drugs, whether or not it was in plain view of the arresting officer or how the defendant exercised any control over the drugs or the location. ([C]ompare People v. Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011] [constructive possession was sufficiently alleged where the arresting officer observed defendant sitting inside of a store with three marijuana cigarettes in an ash tray, in plain view, in front of him and one marijuana cigarette on the floor at defendant’s feet]; People v. Ortiz, 146 Misc 2d 594 [App Term, 2d & 11th Jud Dists 1990] [information alleging that defendant was observed selling a quantity of heroin to an apprehended individual was sufficient to support a charge of possession of a controlled substance]).

Ultimately, the Court dismissed the crime of Seventh Degree Criminal Possession of a Controlled Substance because of the vagueness on the four corners of the complaint. Would the outcome have been different if the defendant admitted the drugs were his at the time of his arrest, was observed dropping the drugs or was the owner of the premises coupled with the drugs being in plain view? Very likely yes. However, none of the factors were mentioned in the instant complaint. Fortunately for the accused, because the prosecutors failed to put these seemingly simply facts into the complaint and fulfill their legal obligations, a criminal lawyer was able to recognize the error and capitalize on law enforcement’s mistake.

Remember, an arrest for PL 220.03 may be faulty for various reasons. From whether or not your search was illegal or improper to whether or not you possessed a controlled substance, do your best to understand the crime for which you are charged and the potential defenses you may have.

A New York criminal defense law firm located in lower Manhattan, the New York criminal lawyers and former Manhattan Assistant District Attorneys represent clients in criminal arrests and Desk Appearance Tickets in New York and surrounding counties.

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