Articles Posted in Drug Possesion

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Both Criminal Sale and Criminal Possession of a Controlled Substance in the Second Degree are class A-2 felonies. If a person has never been convicted of a crime in the past, the minimum period of incarceration for a class A-2 drug felony is three years in prison. The maximum period is 10 years. If a person has previously been convicted of a felony within the past 10 years of the instant offense (excluding time spent in prison), then the minimum period of incarceration is six years and the maximum is 14 years. If the person has previously been convicted of a “violent” felony within the past 10 years (excluding time spent in prison), then the minimum period of incarceration is eight years and the maximum is 17 years.

According to the New York Post, Manhattan District Attorney, and his fellow chief prosecutors throughout New York City may have a problem on their hands. An NYPD civilian lab technician, has been suspended by the NYPD from her job testing drugs and narcotics recovered by the police. Technicians such as the civilian lab technician are relied on by prosecutors from all of the New York City offices in pursuing criminal charges against those who possess or sell drugs and other controlled substances. Only time will tell whether the investigation reveals that she did no wrong, was sloppy or perpetrated an intentional fraud. Having said that, one thing is certain. Right now, if the New York Post story is accurate, there could be numerous people charged with possessing or selling drugs in New York who should be contacting their criminal defense attorneys to ascertain whether or not she tested the alleged controlled substances in their criminal cases.

Controlled substance cases are often handled by specialized officers. In New York City, the NYPD has its own Narcotics Division. Many District Attorney Offices have specialized units with prosecutors who exclusively handle controlled substance cases. Controlled substance offenses have their own unique rules and punishments. A person charged with this type of crime is often treated differently from other offenders, and may benefit from more lenient sentences, particularly if the accused has a drug addiction.

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NY Post: NYPD Lab Technician Suspended for Potential Improper Testing of Drugs in NY Criminal Cases

Under New York law, the substances that are “controlled” are listed in New York Public Health Law Article 33. So if a substance is on that list, it is a “controlled substance.” All of the drugs that are commonly known as being illegal, like heroin, cocaine, LSD, etc, are on this list. Public Health Law 33 also delineates that some “controlled substances” are considered “narcotics.” To put it very basically, under New York law, a “narcotic” is defined as either cocaine or heroin or a chemical derivative of either. Whether a controlled substance is classified as a narcotic is significant because the particular sanctions can be greater for possessing or selling a narcotic in certain contexts. For example, if a person sells LSD to someone else, he is guilty of Criminal Sale of a Controlled Substance in the Fifth Degree, whereas if he sells heroin to someone else, he is guilty of Criminal Sale of a Controlled Substance in Third Degree. The maximum period of incarceration for a first-arrest LSD sale is 30 months in prison. However, the maximum period of incarceration for a first-arrest heroin sale is nine years in prison. When it comes to simple possession, the legal significance is the same. Both narcotics and controlled substances are class A misdemeanors punishable by up to one year in jail.

Both Criminal Sale and Criminal Possession of a Controlled Substance in the First Degree are class A-1 felonies. If a person has never been convicted of a crime in the past, the minimum period of incarceration for a class A-1 drug felony is eight years in prison. The maximum period is 20 years. If a person has previously been convicted of a felony within the past 10 years of the instant offense (excluding time spent in prison), then the minimum period of incarceration is 12 years and the maximum is 24 years. If the person has previously been convicted of a “violent” felony within the past 10 years (excluding time spent in prison), then the minimum period of incarceration is 15 years and the maximum is 30 years. Accusations of Criminal Sale or Possession of a Controlled Substance in the First Degree are among the most serious in the New York Penal Code.

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No Pre-Summer Party in the Hamptons: DA Announces Bust of East End Heroin Ring

Drug dealing or drug sales charges are criminal charges for the sale or attempted sale of any type of illegal controlled substance, such as marijuana, cocaine, heroin, or meth. State laws sometimes refer to drug selling as “possession with the intent to distribute.” Drug dealing or selling is more limited than drug trafficking, which includes any part in the chain of the making, transporting, and selling of drugs.

Generally, the penalties for drug dealing are determined by the type of drug sold, the amount of the drug that was sold, and the number of prior offenses of the defendant, if any. In some cases, even if a person didn’t intend to sell drugs, they will be presumed to be selling if they have over a certain amount of the drug in their possession.

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In People v. Pernell Nunn, , decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether “the exercise of the court’s discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant’s constitutional right to due process? The answer and the case after the jump. Citing the Matter of Jahron S, 79 NY2d 632 (1992), a case involving the possession of drugs, Judge Wilson observed that “‘opinion as to the content of the vials containing alleged controlled substances is legally insufficient because it does not by itself establish the existence of a controlled substance.’ Id at 636. (Emphasis added.) This was the case even if the officer asserted that the substance recovered was crack cocaine based upon his ‘training and experience.’” In other words, to make the complaint sufficient, a laboratory analysis or field test was needed. However, Judge Wilson also recognized that this requirement was not a rule set in stone and that the Court of Appeals left “open the possibility that a deposition based on personal knowledge and expertness may, in unforeseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or its elements, or the special knowledge of the affiant” even without the accompanying chemical analysis. Id. At 640

Judge Wilson ultimately strayed from Kalin finding that due process trumps the ruling in that case. More specifically, the court feared that failure to provide a laboratory report or field test to confirm the presence of the drug would often lead to the incarceration of people and their unjust deprivation of their liberty and rights for extended periods of time prior to having the opportunity to have a trial on their matter.

The court concluded :“In fact, if Kalin is used to excuse the People from producing a field test or laboratory analysis before conversion of the complaint in all cases, there is a substantial risk of our participation in an ‘unchecked system of detention,’ which would carry ‘the potential to become a means for oppression and abuse.’ As stated in the dissent to Kalin, the Criminal Courts of the State of New York must continue ‘to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant.’ “Thus, in an effort to insure that each defendant receives the procedural due process they are guaranteed under the New York State and Federal Constitutions, this Court will continue to require the People to file a laboratory report or field test before a prima facie case is established in the majority of drug-related cases.”

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There are many tactics used by law enforcement to justify a drug possession charge, the process from the moment an arrest or “DAT” (Desk Appearance Ticket) is issued will be critical to the outcome of your case. While law enforcement sends the substance recovered from you to the lab to determine what it is, and whether the amount you had on your person is enough to charge you with a felony drug charge, you should be working actively with your criminal defense attorney before the first appearance.

After the Court of Appeal’s recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the “policy” that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant’s constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

The Controlled Substances Act is the federal drug policy that regulates the manufacture and distribution of controlled substances such as hallucinogens, narcotics, depressants, and stimulants. The Act categorizes drugs into five “Schedules” or classifications based on their potential for abuse, status in international treaties, and any medical benefits they may provide. Drugs classified in Schedule 1 are considered the most harmful substances with no medical benefits, and the rest descend from there: Schedule 1: Examples of Schedule 1 drugs include Ecstasy, LSD, and Heroin. Marijuana is also considered a Schedule 1 drug despite several studies done on its medical benefits. Schedule 2: Examples of Schedule 2 drugs include Cocaine and Morphine. Schedule 3: Examples of Schedule 3 drugs include Anabolic steroids, Vicodin, and Marinol, which is used to treat nausea caused by chemotherapy. Schedule 4: Examples of Schedule 4 drugs include Ambien, Xanax, and Valium. Schedule 5: Examples of Schedule 5 drugs include Lyrica and cough suppressants.

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Possession or distribution of illegal drugs is considered a crime under federal and state laws which can result in criminal prosecution. The manufacturing of illegal drugs is considered a felony. The consequences of a conviction can include hefty fines and prison time. In addition, those who help to produce any kind of illegal drug may also be charged with the crime and are typically subject to consequences that are much more severe than possession of a drug for personal use.

Under the New York Penal Law, a person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to section thirty-three hundred eighty-one of the public health law; nor shall it be a violation of this section when a person’s unlawful possession of a controlled substance is discovered as a result of seeking immediate health care as defined in paragraph (b) of subdivision three of section 220.78 of the penal law, for either another person or him or herself because such person is experiencing a drug or alcohol overdose or other life threatening medical emergency as defined in paragraph (a) of subdivision three of section 220.78 of the penal law. Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

Conviction of a Class A Misdemeanor for criminal possession of a controlled substance could result in up to 1 year in jail. The criminal defense attorneys at E. Stewart Jones are ready and able to defend your misdemeanor drug cases. It should be noted that if the possession charge is accompanied by another misdemeanor or felony charge, or preceded by previous charges or convictions, time in jail or prison can increase significantly. Our attorneys will work hard to present a strong defense to minimize time in jail, fines and or penalties.

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The prosecution’s intention to utilize the statements and identifications was unambiguously communicated to the defendant throughout the controlling time period, and was never withdrawn. To the extent that the formal notice portions of the VDF lacked certain talismanic details, the Court declined to read them in isolation. The information contained in the six-page VDF, of which the formal notices were a part, the oral notice provided at the arraignment on the felony complaint, and the 161 form provided thirteen days after arraignment, was sufficient to meet the requirement that the People “specify the statement or identification evidence intended to be offered” and included the specific information enumerated by the Court of Appeals in Lopez case.

The location at which the first statement was made can be determined by reading the VDF, which included the facts that the officer to whom it was made was involved in the arrest, and that the arrest took place five minutes after the statement was made. This information was sufficient to apprise the defendant that he had made the statement at the arrest scene. Similarly, although the exact hour and minute at which the defendant made his audio-taped statement was not included in the VDF, the information identifying the date, location, and ADA to whom he made his such statement was sufficient to identify the time at which the statement was made. The time was limited to that period of 4 January 1995 during which he was at the District Attorney’s Complaint Room and before he was taken to the court for arraignment. This information narrowed the time of the statement to a period sufficiently short so as to permit the defendant meaningfully to identify the exact statement he was alleged to have made. There was, after all, no allegation that the defendant made more than one statement to the ADA while at the complaint room on such date, which might give rise to a need for the prosecution to state the exact hour at which the statement was made.

As to the identification notice, the defendant argued that it was insufficiently specific both because it did not unambiguously state whether the identification procedure utilized in the emergency room of the hospital on the night of the assault was a lineup or a show-up, and because the names and exact number of the police witnesses who also identified him at the hospital were not specified. The People correctly responded that the type of identification procedure–a show-up–was unambiguously stated to the defendant when the original notice of the identification procedure was given at the arraignment on the felony complaint.

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Respondents assert that various physicians, whom they have named, who have treated or evaluated the Respondents are located in close proximity to New York County and would be inconvenienced by having to travel to the locations where the State is moving to transfer venue. That is, while some of the witnesses relevant to the commission of Respondent’s crimes may, even decades after these crimes were committed, continue to reside in those jurisdictions, witnesses who can testify about the current condition of the Respondents are located in proximity to New York County. Reckless endangerment was not charged.

The crucial confidentiality protections provided to crime victims under Article 10 could easily be accommodated, however, by issuing a protective order to shield any victim identifying information in a venue change motion or requiring that such information be provided to the court in-camera. Indeed M.H.L. §10.08(d), cited above, would appear to require such a criminal procedure if information about crime victims was provided by the State in connection with a venue change motion. The State has not moved, however, to invoke any of these possible protections. Rather, they have taken the position that to prevail on this motion, they are simply not required to provide any specific information about crime victims or other witnesses who might be inconvenienced by retaining venue in its current location.

While the venue change statute at issue in these motions notes three factors the court may consider in making venue change determinations, those considerations, as noted above, are not exclusive. Rather, venue may be moved upon any basis if “good cause” is shown. The State makes a number of closely related arguments about why good cause exists to move venue in these cases apart from the three non-exclusive factors discussed above.

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There appears to be no reported criminal case that has applied the cruel and unusual punishment analysis or considered the disproportionality of the mandatory imprisonment statute to the crime of Robbery in the First Degree in a particular case. However, it is clear that the highest courts in this country and state have not precluded a trial court from finding a particular punishment cruel and unusual in any given case.

The criminal court is faced here with a defendant who has been convicted of crimes involving the robbery of a jacket and a small amount of currency. Defendant was identified from a photograph by the two complainants who were alleged to have seen him for a period of five to ten minutes during the commission of the crime. Defendant presented four alibi witnesses who were apparently disbelieved by the jury.

The Legislature, in requiring mandatory incarceration for a conviction of Robbery in the First Degree, recognized the gravity of the offense and the need for punishment. However, under the unique set of circumstances as they present themselves in the instant case, the court must assess the proportionality of the punishment to the crime and to this particular defendant.

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In Lopez, the Court of Appeals ruled that, for the notice to be sufficiently specific “the People were required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements * * * Full copies of the statements need not be supplied but they must be described sufficiently so that defendant can intelligently identify them.” Similarly, the People were also required to inform drug crime defendant of the time, place and manner in which the identification was made.

However, this cannot be read to require the reviewing court to ignore the written information provided to the herein defendant in the same document which contained the formal “notice” statements or to ignore notice given either before the arraignment on the indictment or within the fifteen day window following thereafter. A contrary interpretation would cause the ridiculous consequence of preclusion of an identification or statement even though the defendant actually received the specific notice to which he was entitled, merely because the details were not provided in a particular format labeled “statement notice” or “identification notice.”

Neither the notice statute nor any court has mandated a precise format in which the notice must be written in order to be valid. To the contrary, courts have ruled that the notice may be oral, and may be given before the arraignment on the indictment. Nor was there a requirement that the notice form be complete in itself. Notices have been found sufficient where the specifying details were provided by written material attached to the notice form, rather than in the notice itself, or by information provided orally.

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