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Penal Law § 220.25

A Suffolk Marijuana Possession Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Suffolk County, rendered April 25, 2008, convicting him of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, criminal possession of marijuana in the fifth degree, failure to signal, and failure to display a lit headlamp, upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of 8½ years for criminal possession of a controlled substance in the second degree, seven years for criminal possession of a controlled substance in the third degree, three months for criminal possession of marijuana in the fifth degree, one day for failure to signal, and one day for failure to display a lit headlamp.

A Suffolk Drug Possession Lawyer said that, in another case, petitioner was charged with the violation “Unlawful Possession of Marijuana” in violation of Penal Law §221.05 and was issued a desk appearance ticket. He appeared for arraignment on May 28, 2003 and was released on his own recognizance by respondent provided that he submit to a supervised drug test and that he report home by 10:00 p.m. each night. This petition seeks an order in the nature of prohibition claiming that the respondent Judge exceeded her authority by imposing conditions which were not relevant to the issue of bail and which violate petitioner’s due process rights.

The issue in this case is whether the defendant’s appeal should be granted.

Contrary to the defendant’s contention, the grand jury proceeding did not fail to conform to the requirements of CPL article 190 to such a degree that the integrity thereof was impaired, and, even if some of the testimony elicited was inadmissible, no prejudice to the defendant could have resulted therefrom.

The trial court did not err in allowing the People to submit evidence of cocaine residue in the defendant’s pants pocket. Contrary to the defendant’s assertion, this evidence was not evidence of a separate uncharged crime, but, rather, was evidence that he possessed the cocaine with which he was charged with possessing in the present case.

The defendant’s contention that an expert police witness’s testimony invaded the jury’s exclusive province of determining an ultimate fact issue in the case, is unpreserved for appellate review. In any event, even if the testimony was improper, its admission was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the error contributed to his convictions.

Contrary to the defendant’s assertion, the assistant district attorney did not “drive a key defense witness from the witness stand through intimidation. Rather, the record shows that defense counsel chose not to call the witness to testify. Moreover, the Supreme Court properly conducted an inquiry to insure that the potential witness, who claimed that the narcotics were his, was aware of the possible legal consequences of giving testimony and of his privilege to refuse to testify. Furthermore, the extensive questioning by the potential witness’s attorney was necessitated by the potential witness’s mental illness.

The defendant contends that the prosecutor’s summation deprived him of a fair trial. The challenged remarks, however, were responsive to defense counsel’s opening and closing statements. Furthermore, the prosecutor did not misstate the law with respect to the so-called automobile presumption (see Penal Law § 220.25). The sentences imposed on the convictions for criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree were excessive to the extent indicated here.

Accordingly, the court held that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment of 8½ years imposed for criminal possession of a controlled substance in the second degree to a determinate term of imprisonment of five years, and by reducing the determinate term of imprisonment of seven years imposed on the conviction of criminal possession of a controlled substance in the third degree to a determinate term of imprisonment of three years; as so modified, the judgment is affirmed.

Based upon the disposition of the underlying proceeding in local criminal Court, and petitioner’s request that the petition seeking a writ of prohibition be withdrawn as moot, the Clerk of the Court is hereby directed to mark the petition as withdrawn upon consent of the parties. The prior Order and Judgment dated July 28, 2003 is hereby vacated.

Are you facing marijuana possession charges? Seek the legal advice of a Suffolk Drug Possession Attorney and Suffolk Criminal Attorney at Stephen Bilkis and Associates.

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