This is a joint appeal case by two defendants for their respective adjudications and sentences that were imposed when a jury found them guilty of unlawful possession of marijuana. The defendants concede that the evidence shows that they attempted possession, but they argue on appeal that they never had actual or constructive possession of the marijuana and because of this their convictions should be reduced from a third degree felony charge to a first degree misdemeanor charge.
This was a reverse sting operation where the defendants along with eight other codefendants came up as potential buyers for marijuana that was offered for sale by an undercover police officer that posed as drug sellers.
Within a few days of introductions four agents, two who drove a truck that contained between 700 to 1200 pounds of marijuana, were led to a residence that was occupied by the defendants. Upon arrival introductions were made and they all went into the house.
A New York Criminal Lawyer said when inside the home, negotiations started and the agents and the defendants came to an agreement that a total of 108 pounds would be purchased. The agents were told to move the truck containing the marijuana to the back of the house.
A sample of the pot was brought into the house upon request. Money was exchanged and the officers went outside to get more of the marijuana. A Long Island Criminal Lawyer said when outside they signaled to the other officers on the scene and all of the people inside the home were then arrested.
Court Discussion and Decision
The defendants argue that they never actually had possession of the marijuana and no set agreement was made for the purchase as they had only sampled the product and not purchased any when the police arrived.
We agree with the defendants that the charge should have been attempted possession and the defendants should be resentenced.
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