A New York Criminal Lawyer said the defendant is appealing two orders that were made by the County Circuit Court. The first order that is being appealed denied his motion for post-conviction relief. The second order revoked his probation and imposed a prison sentence.
The defendant raises three main points on appeal. First, the court erred in denying his motion for relief because he was on probation and was not a prisoner in custody under the sentence when he made the motion. Second, the evidence was not sufficient in the case to support the fact that he had constructive possession of the legal illicit drugs. Finally, he argues that the court erred in his sentencing by not following sentencing guidelines.
The defendant was charged with illegal possession of cocaine and narcotic paraphernalia. He was also charged with illegally possession of controlled substances including Methaquaalone and Diazepam (drug possession).
The defendant pled nolo contendere to all of the charges that were made against him and reserved the right to appeal the denial of his motion to suppress. He was found guilty and ordered to serve concurrent sentences of five years’ probation and to pay a fine of $2500. He was to spend 30 days in jail. On appeal, the ruling on the motion to suppress was affirmed.
The conditions of the defendants probation included that he remain at liberty without violating any laws and that he not possess any type of illegal drug.
At a later date an affidavit was filed for the revocation of the defendant’s probation. The affidavits allege that the defendant had violated the conditions of parole as criminal charges were filed against him in another county for possession of over 2000 pounds of marijuana.
A Manhattan Criminal Lawyer said the defendant was returned to this county and held in jail with a bond of $150,000. While waiting for his revocation hearing, the defendant filed a motion alleging that he was denied effective counsel during his previous proceedings that had resulted in him being put on probation.
The state contended that the defendant lacked standing for this motion since he was not a prisoner that is held in custody by a sentence of the court.
The court reviewed the case and finds that the court erred when they ruled that the defendant had no standing for the motion based on the fact that he was not a prisoner in custody by ruling of a court.
The court must review the motion to determine whether or not the defendant has a case for ineffective counsel. A New York Sex Crimes Lawyer said the defendant argues that he was not adequately represented during his case.
The second issue that the defendant has is the evidence in the case. The defendant states that he did not know about the drugs that were found on him at the time of his arrest. He states that his girlfriend placed the drugs on his person and that she would testify the same.
Court Discussion and Decision
The court has reviewed the facts of the case and finds that there is a lack of evidence for constructive possession. The order that revoked probation will be dismissed and directions will be provided to the court to dismiss the revocation proceedings.
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