People v. B
2018 NY Slip Op 04032
June 7, 2018
People v. B
2018 NY Slip Op 04032
June 7, 2018
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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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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.
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.
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.
In this Criminal case, Defendant stands convicted after a jury trial of Robbery in the First Degree, Robbery in the Second Degree, Attempted Robbery in the First Degree and Attempted Robbery in the Second Degree.
A Queens County Criminal lawyer said that in January1986, defense counsel moved pursuant to CPL § 460.50 for a stay of the execution of the sentence pending the determination of an appeal of the instant conviction. The court imposed the minimum sentence authorized by law of an indeterminate term of imprisonment of no less than two and no more than six years for the top count of the indictment and stayed the execution thereof upon defendant’s application.
Defendant’s conviction was affirmed by the Appellate Division, Second Department, and the case was remanded to the trial court for execution of the sentence. The matter was adjourned with the consent of the People and the court in order to allow defendant to explore whether any alternative was possible other than the execution of sentence of incarceration imposed by the court.
On 4 January 1995, at the defendant’s arraignment on the felony complaint, the prosecution gave oral notice of its intent to use two statements that the defendant had made: (a) on 3 January 1995 at 10:40 p.m., in which the defendant stated that he “was coming from Church” and that the police “were always stopping him for this kind of stuff;” and (b) an audio-taped statement in which the defendant denied the crime. The prosecution also gave oral notice that the complainant had observed the defendant in a show-up at Beth Israel Hospital at 11:20 p.m. and had stated that the defendant “looks like the guy.” The prosecution further stated that three police officers, who were together in a car, had observed the defendant slashing the complainant and then grabbing her bag.
At his 15 June 1995 arraignment on the indictment, the criminal defendant was served with the Voluntary Disclosure Form (VDF). The first page, just above the statement and identification notice portions, stated that the crime was committed on 3 January 1995 at 10:30 p.m. in front of 231 East 14th Street and that the arrest occurred at 10:45 p.m. on 3 January 1995, in front of 309 East 10th Street. The VDF described the two oral statements made by the defendant: to a named Police Officer 3 January 1995 and its substance; and to a named Assistant District Attorney (ADA) at the District Attorney’s Office Complaint Room on 4 January 1995 and the substance of that statement. The identification notice portion of the VDF stated that on 3 January 1995 at Beth Israel Hospital, “hospitalized complainant suffering from injuries had opportunity to observe defendant and stated that he, in substance, ‘looks like the guy.’ In addition, several police eyewitnesses did identify him at the hospital.”
On 28 June 1995, a conference on the case was conducted at the bench and the prosecutor read the trial assistant’s write up (161 form) to the court and defense counsel. The 161 form included the information that the complainant was taken to the hospital for medical treatment and concluded: “When police bring D to hospital for show-up later that night, CW stated, in substance, that D ‘looks like’ the man who attacked her. At least three different police stated that they were certain that D was the man they observed attacked CW.”
A Queens Drug Crime Lawyer said that, the appellant was arrested on July 13, 1989, in Jamaica, Queens. A petition filed the following day in Family Court, Queens County, alleged that he had committed acts that if engaged in by an adult would constitute criminal possession of a controlled substance in the third, fifth and seventh degrees. Attached to the petition was a supporting deposition in which Police Officer stated that he had observed appellant in possession of 33 vials of cocaine possession in crack form, and that “based upon his training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances,” he believed the substance to be crack possession cocaine.
A Queens Criminal Lawyer said that, the same day that the petition was filed, appellant’s counsel moved that it be dismissed as legally insufficient since there was no laboratory report attached to the petition and Officer Henry’s account in the supporting deposition constituted hearsay. The court denied the request at that time. By omnibus motion and accompanying affirmation dated August 7, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency. The presentment agency appended to its answering affirmation a laboratory report dated July 18, 1989, which showed that the 33 vials seized from appellant contained 2,648 milligrams of crack cocaine possession. At a hearing before the Judge on August 15, 1989, appellant’s counsel again requested that the petition be dismissed for legal insufficiency, arguing that the presentment agency could not amend its petition by attaching the laboratory report because Family Court Act § 311.5 provides that a petition cannot be amended to cure legal insufficiency. The court reserved decision and finally denied appellant’s motion to dismiss the petition on September 13, 1989.
A hearing was held on September 20, 1989, to consider appellant’s motion to suppress. At this hearing, the Police Officer testified that on July 13, 1989, he was working as a backup on an undercover narcotics operation. At about 3:25 in the afternoon, he received a radio message from his partner, who reported that he had observed a young male engaged in a number of transactions which appeared to involve vials of crack cocaine. Approximately two minutes after receiving this message, the Officer spotted appellant, who fit the description radioed in by the other police officer. The Police Officer approached and detained the appellant. His partner drove by and confirmed that the appellant was the person he had seen earlier. The Police Officer then arrested appellant and recovered 33 vials of a substance that appeared to be crack possession of cocaine from the pocket of appellant’s jacket. Appellant testified in his own behalf and denied having sold crack cocaine prior to his arrest.
Here, the marijuana allegedly open to public view is not recovered and thus the sole allegation that the exchanged item was marijuana is conclusory. The deponent officer gives no description of the allegedly exchanged marijuana to support his conclusion. Further, it appears that the factual allegations regarding his conclusions based on his training and experience do not apply to the object that was allegedly exchanged with the other individual as he indicates that a field test was conducted on that marijuana and, as mentioned above, the marijuana allegedly exchanged in public view was not recovered. Simply, the police officer could not draw a conclusion based on the odor of a substance that he could not have smelled and he offers no physical description of the substance that was not recovered on which the court could reason he based his conclusion.
In addition, the allegations fail to establish any connection between the bag on the window sill and the defendant, or between the contents of the bag and the object that defendant allegedly exchanged with the other individual. Such connection would be needed for the court to reasonably infer from it that the exchanged object was marijuana. Faced with the bare facts in this accusatory instrument, the court is not able to infer that the item allegedly observed being exchanged by the defendant for money was marijuana.
Therefore, this court finds that the accusatory instrument fails to provide reasonable cause to believe that the defendant knowingly and unlawful possession of marijuana in a public place and open to public view. Accordingly, defendant’s motion to dismiss the charge of Criminal Possession of Marihuana in the Fifth Degree is granted.
In this case, defendant man was indicted for two counts of Criminal Sale of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Third Degree, two counts of Criminal Possession of a Controlled Substance in the Fifth Degree, two counts of Criminal Use of Drug Paraphernalia in the Second Degree, and Unlawful Possession of Marijuana.
The defendant man pled guilty to Criminal Sale of a Controlled Substance in the Third Degree, a B felony. In exchange for his guilty plea, the defendant was to be sentenced to a term of incarceration of either two to six years, if a previous conviction was overturned by the Appellate Division, or a term of four and one-half to nine years, if the previous felony conviction was not reversed and he was considered a predicate felon. At the time of his plea, he was told by the Court that if he failed to return for sentencing he would face eight and one third to twenty-five years or twelve and one half to twenty-five years incarceration, depending on whether he was considered a predicate felon.
The defendant man failed to appear for sentencing and a bench warrant was issued for his arrest. On December 18, 2008, the defendant was returned involuntarily on the outstanding bench warrant after being arrested for burglary. At that time, the defendant also had a pending indictment for Bail Jumping in the First Degree, as a result of his failure to return for sentencing. The defendant man was finally sentenced in this matter to an indeterminate term of imprisonment of seven to twenty-one years. He is currently incarcerated pursuant to this sentence.