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.
In People v. Saveljevs, 2017 NY Slip Op 50857 (2nd Dept. 2017), the NYPD arrested the defendant for PL 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree. No, the defendant did not have cocaine in a baggie nor was he busted at a club with tabs of some other designer drug in his pocket. Pills? None of those either. Instead, the police accused the defendant dropping a hypodermic needle to the ground where they recovered it and observed what they believed to be, based on their training and experience, heroin within that needle. Field test? No. Laboratory analysis? Nope. Simply, without anything beyond their observations of a substance within the hypodermic needle – no test, no admissions, no smell….nadda’ – the arresting officer signed off on a complaint alleging a violation of the law.
Obviously, based on the title of this blog you can likely take an educated guess and figure out that despite what was lacking, the court found the complaint (at this point called an “information”) legally sufficient. Why? The officer articulated his experience in making arrests involving heroin in hypodermic needles, his general training and experience, and his familiarity with the packaging of heroin.
Despite losing this sufficiency battle, keep your chin up. Legal sufficiency is not proof beyond a reasonable doubt. In the event that the accused, or any alleged wrongdoer, is confident that the drugs in question are not in fact drugs, if and when the prosecution proceeded to trial they would be required to produce a chemical test to corroborate whether the substance alleged as drugs was in fact the same drug the police claimed. Even before then, there are legal hurdles such as search and seizure issues that law enforcement must overcome.
Outside of the obvious lesson of don’t do drugs, and certainly not in public, know that the standard for legal sufficiency is fairly low. Now you know…and, as a wise cartoon character once said, “Knowing is half the battle.”
To learn more about New York drug crimes, including PL 220.03, follow the links contained here and search the blogs and websites listed below.
A New York criminal defense law firm located in lower Manhattan, the New York criminal lawyers and former Manhattan prosecutors at Saland Law PC represent clients throughout the New York City, Hudson Valley region and many other municipalities.