Articles Posted in Marijuana

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An Appeal was filed by the defendant from a judgment of the County Court, Suffolk County, convicting him of criminal possession of a controlled substance in the fourth degree and failure to stop at a stop sign, upon a jury verdict, and imposing sentence.

A Suffolk County Drug Crime attorney said that the defendant’s motion to dismiss the indictment on the ground that he was not afforded the opportunity to testify before the grand jury, and that he was deprived of the effective assistance of counsel in that respect, was properly denied.

Viewing the evidence in the light most favorable to the prosecution, the Court found that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling the Court’s responsibility to conduct an independent review of the weight of the evidence.

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A Suffolk Marijuana Possession Lawyer said that, the People appeal from an order of the County Court, Suffolk County, which, after a hearing, granted the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material. The order should be modified, by deleting so much thereof as suppressed the eight bags of plant material and substituting therefor a provision denying the motion as to the said evidence. Armed with an affidavit signed by a named informant who had been arrested on burglary charges, the police applied to a District Court Judge for a warrant to search the defendant’s home. The informant alleged in his affidavit that he had seen 12 bags of Marijuana in the defendant’s home the day before and that the defendant was known to the informant to be a dealer in marijuana. The affidavit described the bags, their location, the premises and the occupants of the premises in great detail.

A Suffolk Criminal Possession of Marijuana Lawyer said that, based primarily upon the informant’s signed affidavit, the District Court issued a warrant authorizing the search for, and the seizure of, “twelve large plastic bags containing marijuana and any other contraband which is unlawfully possessed”.

The issue in this case is whether the court erred in granting the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material.

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Where the people contend, as they do, that the request for such an investigation places this court in an accusatory posture with respect to the office of the district attorney of Suffolk County, such contention clearly is misplaced. If that were the case, and it certainly is not, this court should properly recuse itself from presiding over any criminal matter in the County of Suffolk. Obviously, such argument cannot be made with validity; thus, the attempt to focus this court’s alleged bias toward the prosecution of the indictments.

It is well settled law both in this state and in the federal courts that in order for bias and prejudice to be disqualifying it “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”

It is certainly not the intent of the law or the Code of Judicial Conduct to permit a party to engage in conduct “in a course of litigation that might cause any conscientious judge to express, even in caustic terms, his disapproval of it, and thereby put himself in position thereafter to urge successfully motions to disqualify the judge in his subsequent cases before him.” Parties or lawyers, once embroiled in a self created controversy with a judge, “would have a license under which the judge would serve at their will.”

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In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the marijuana Possession and Assault in the Second Degree and Sexual Abuse in the First Degree.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case “in which his impartiality might reasonably be questioned where … he has a personal bias or prejudice concerning a party.”

A Suffolk County Criminal attorney said that in affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation “that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court’s impartiality might reasonably be questioned.”

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(2) The Court also rejected the claim of double jeopardy, which does not require preservation. The prohibition against double jeopardy does not create a blanket rule that a court may never correct an error by increasing a defendant’s sentence. As held in US v. DiFrancesco (1980) “a sentence does not have the qualities of constitutional finality that attend an acquittal”. Nevertheless, as the Court of Appeals noted in subsequent Williams case citing DiFrancesco, the prohibition against double jeopardy does not mean that a defendant’s sentence may not be increased “once the criminal defendant has a legitimate expectation in the finality of the sentence”. At issue in Williams and its companion cases was whether the terms of post-release supervision (PRS) could be added to the sentences of defendants who had illegally received determinate sentences lacking the PRS component. Applying the legitimate-expectation-of-finality rule, the Criminal Court held that PRS terms could not be added to the defendants’ sentences “after the defendants had satisfied the original judgments of the respective sentencing courts and been released from incarceration at the termination of their sentences of imprisonment”, and after the People’s time to appeal from the illegal sentences had expired.

In this case, although the defendant, like the Williams defendants, was not resentenced until after he had been released, there are significant differences between these two cases that, the Court saw a compelling different result in the instant case: (a) in each of the Williams cases, the defendant had “completed his original sentence of imprisonment” in accordance with the only reasonable interpretation of the sentencing court’s actual sentence pronouncement: the sentencing court had pronounced only a sentence of incarceration and had not pronounced a term of PRS. In this case, by contrast, the defendant could not reasonably have understood the court’s sentencing pronouncement to have meant that the court was sentencing him to no additional time; (b) after having duly served the pronounced sentences as reasonably understood by the defendants in Williams they acquired a legitimate expectation of finality.

The same cannot be said of defendant in the instant case; (c) the court’s conclusion was reinforced by the following observation of the Court of Appeals in Williams: “This analysis has no application to a person who, for example, is erroneously released early by DOCS (Department of Correctional Services)”. Although defendant in the instant case was perhaps, strictly speaking, not released because of a mistake on the part of jail personnel, his release stemmed from a communication gap between the District Court and jail personnel; and finally (4) the expiration of the People’s time to appeal from an illegal sentence does not, without more, afford a defendant a legitimate expectation of finality. Analogously, in this case, the inability of the People to challenge the violation of probation sentence as construed by the jail personnel did not, standing alone, afford defendant a legitimate expectation of finality.

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Second, the Grand Jury may exercise its own discretion either in not voting an indictment or in returning an indictment against an individual for one or more counts. At that point, too, persons similarly situated may be differently treated.

Third, the petit jury, may, by its verdict exercise its power of nullification or of mercy by finding a defendant not guilty, or guilty of a lesser degree of the crime charged, even as to codefendants similarly situated. At this third point, persons similarly situated may be differently treated.

The Legislature has in effect elevated the second point–the action of the Grand Jury–for its choice in the determination of eligibility for youthful offender treatment. That choice may, of course, result in different treatment of persons similarly situated. But the same result of difference in treatment may arise from the verdict of the petit jury or the discretion of the prosecutor. Thus, two youths implicated equally in the commission of a murder, and indicted for that crime, may be differentiated at trial by the petit jury to the end that one is found guilty of manslaughter (allowing eligibility) and the other of murder.

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This is an appeal by defendant from a resentence of the District Court of Suffolk County, First District imposed on 17 June 2009 upon his admission to a violation of probation.

After being convicted of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), defendant was sentenced on 4 May 2006 to three years of probation. The condition provided in the probation was for a term of 60 days in jail, and a fine. He served the imprisonment term and was thereafter released. On 2 June 2009, he admitted to a violation of probation. During the course of the admission proceeding, the District Court promised the defendant that he would sentence him to an additional 60 days incarceration in addition to the first 60 days he already served because of drunk driving, and terminate him from probation. On 8 June 2009, the sentencing date, the District Court imposed on him the sentence as what promised on June 2. The criminal defense counsel asked the court for the possibility of the Stop DWI facility to which the court issued a commitment sheet dated 8 June 2009 that stated “count 1, 60 days in SCJ in Stop DWI”. On that day, the defendant was first taken to the Suffolk County Jail and then released. He was released because the jail personnel understood his sentence to be simply 60 days, as opposed to an additional 60 days, and credited him with the time applicable to his original 60-day jail term.

After learning of the defendant’s release, the District Court first held an informal hearing with defense counsel and the prosecutor on 11 June 2009, and then held a formal resentencing proceeding in the presence of the defendant on 17 June 2009. It resentenced defendant to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served”. The court imposed the resentence over a protest by the defendant that the resentencing violated CPL 430.10, and over the People’s agreement that the resentencing was improper. The court issued a new commitment sheet dated 17 June 2009 that stated “count 1. 120 days in SCJ with credit for time served”.

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The defendant is accused by indictment with various crimes associated with a controlled substance including the drug crime of Criminal Sale of a Controlled Substance in the Third Degree. He now moves for dismissal of this, the fifth count of the indictment, on the ground that Penal Law § 70.00, which provides the penalty for such crime, is unconstitutional, and alternatively, for dismissal of this count in the interest of justice.

A Suffolk County Drug crime lawyer said that the Defendant’s application is based upon the affidavit of a psychiatrist, who has examined the defendant and determined that the defendant is emotionally disturbed and in need of therapeutic intervention. The psychiatrist feels that unless the defendant receives appropriate treatment, suicide would be a distinct possibility. It is the doctor’s opinion that the intense psychiatric treatment and drug rehabilitation the defendant needs would not be available in a penal institution. The instant section, therefore, as defendant contends, is unconstitutional as to him in that it provides for a mandatory minimum period of incarceration of one year and constitutes cruel and unusual punishment.

The People cite s case, in opposition to this motion. In said case, the defendant leveled his attack upon the constitutionality of Article 220 of the Penal Law on the ground that cocaine, the substance the sale and possession of which the defendant was indicted for, was improperly classified by the legislature. It was the defendant’s contention that the improper classification violated the defendant’s right to equal protection.

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Where, however, the individual interest involves a fundamental right, the test of substantive due process is whether a ‘compelling state interest’ was advanced by the regulation, and whether the regulation was the least restrictive method available to effectuate the ‘compelling state interest’. The test of ‘reasonableness’ is similar to the test of ‘rational grounds’ used in determining a claim of unequal protection of the laws; and the test of ‘least restrictive method’ in advancing a ‘compelling state interest’ is also similar to the test of the ‘two-tiered’ standard used in considering equal protection, as we shall see beyond.

Rather than to discuss the bases of the legislation twice, we think it preferable to consider the claims of a violation of due process and equal protection together. For the purpose of these appeals, the two constitutional claims coalesce; and we view the claim of lack of substantive due process as subsumed under the more critical claim of the breach of equal protection of the laws.

The criminal defendants’ contentions regarding equal protection are relatively simple: they say that they are treated differently from others similarly circumstanced in that they may not receive youthful offender treatment because of the charge in the indictment, though convicted of a lesser crime permitting eligibility, whereas others indicted and convicted of the same lesser crime may receive youthful offender treatment. This result, they claim, deprives them of the equal protection of the law.

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That argument was specifically rejected by the Court of Appeals as a matter of statutory construction and by the Appellate Division, Second Department, under constitutional due process and equal protection standards. In any event, even if the clear and convincing evidence test were deemed applicable to the instant proceeding, we would find that the evidence at the hearing met that more stringent test.

Nor the Criminal Court find merit to his claim that the proceeding to recommit him was untimely. The application for recommitment was originally filed on August 4, 1992, within the five-year period of the order of conditions which commenced August 7, 1987, the date S. pleaded not responsible by reason of mental disease or defect. While these conditions were amended at one point, the amendment was made nunc pro tunc as of August 7, 1987. The application was filed with the court on August 4, 1992, and attempted service at S.’s last known address was made. However, it was later discovered that S. did not receive a copy of the recommitment application, and shortly thereafter a new notice of the recommitment application was sent to S. at his fiancee’s residence in Baldwin, New York, where it was actually received by S.

CPL 330.20(14) provides that “[a]t any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder.” The order of conditions did not expire until August 7, 1992, and the present application was filed on August 4, 1992.

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