Articles Posted in Marijuana

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An Appeal was filed by the defendant from a judgment of the County Court, Suffolk County, convicting him of criminal possession of a controlled substance in the fourth degree and failure to stop at a stop sign, upon a jury verdict, and imposing sentence.

A Suffolk County Drug Crime attorney said that the defendant’s motion to dismiss the indictment on the ground that he was not afforded the opportunity to testify before the grand jury, and that he was deprived of the effective assistance of counsel in that respect, was properly denied.

Viewing the evidence in the light most favorable to the prosecution, the Court found that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling the Court’s responsibility to conduct an independent review of the weight of the evidence.

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A Suffolk Marijuana Possession Lawyer said that, the People appeal from an order of the County Court, Suffolk County, which, after a hearing, granted the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material. The order should be modified, by deleting so much thereof as suppressed the eight bags of plant material and substituting therefor a provision denying the motion as to the said evidence. Armed with an affidavit signed by a named informant who had been arrested on burglary charges, the police applied to a District Court Judge for a warrant to search the defendant’s home. The informant alleged in his affidavit that he had seen 12 bags of Marijuana in the defendant’s home the day before and that the defendant was known to the informant to be a dealer in marijuana. The affidavit described the bags, their location, the premises and the occupants of the premises in great detail.

A Suffolk Criminal Possession of Marijuana Lawyer said that, based primarily upon the informant’s signed affidavit, the District Court issued a warrant authorizing the search for, and the seizure of, “twelve large plastic bags containing marijuana and any other contraband which is unlawfully possessed”.

The issue in this case is whether the court erred in granting the defendant’s motion to suppress certain physical evidence seized upon the execution of a search warrant, including eight bags of plant material.

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In an unprecedented action in the County of Suffolk, the prosecutor, on behalf of the People of the State of New York, requests an order disqualifying or recusing this court from presiding as the assigned judge of two separate indictments charging the defendant with the commission of two counts of Burglary in the First Degree, Assault in the Second Degree and the marijuana Possession and Assault in the Second Degree and Sexual Abuse in the First Degree.

It is beyond dispute that a judge must be free from all prejudice or bias, actual or implied, and an impartial arbiter of all causes over which he presides. A judge should disqualify himself from a case “in which his impartiality might reasonably be questioned where … he has a personal bias or prejudice concerning a party.”

A Suffolk County Criminal attorney said that in affidavits replete with out-of-context quotations, inaccurate quotations, and arguments fueled in large measure by newspaper accounts and incomplete transcripts, they raise the serious allegation “that a pattern of conduct of this Court in these cases, as well as in other recent matters, has established a bias or animosity such that this Court’s impartiality might reasonably be questioned.”

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This is an appeal by defendant from a resentence of the District Court of Suffolk County, First District imposed on 17 June 2009 upon his admission to a violation of probation.

After being convicted of driving while intoxicated (Vehicle and Traffic Law § 1192[3]), defendant was sentenced on 4 May 2006 to three years of probation. The condition provided in the probation was for a term of 60 days in jail, and a fine. He served the imprisonment term and was thereafter released. On 2 June 2009, he admitted to a violation of probation. During the course of the admission proceeding, the District Court promised the defendant that he would sentence him to an additional 60 days incarceration in addition to the first 60 days he already served because of drunk driving, and terminate him from probation. On 8 June 2009, the sentencing date, the District Court imposed on him the sentence as what promised on June 2. The criminal defense counsel asked the court for the possibility of the Stop DWI facility to which the court issued a commitment sheet dated 8 June 2009 that stated “count 1, 60 days in SCJ in Stop DWI”. On that day, the defendant was first taken to the Suffolk County Jail and then released. He was released because the jail personnel understood his sentence to be simply 60 days, as opposed to an additional 60 days, and credited him with the time applicable to his original 60-day jail term.

After learning of the defendant’s release, the District Court first held an informal hearing with defense counsel and the prosecutor on 11 June 2009, and then held a formal resentencing proceeding in the presence of the defendant on 17 June 2009. It resentenced defendant to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served”. The court imposed the resentence over a protest by the defendant that the resentencing violated CPL 430.10, and over the People’s agreement that the resentencing was improper. The court issued a new commitment sheet dated 17 June 2009 that stated “count 1. 120 days in SCJ with credit for time served”.

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The defendant is accused by indictment with various crimes associated with a controlled substance including the drug crime of Criminal Sale of a Controlled Substance in the Third Degree. He now moves for dismissal of this, the fifth count of the indictment, on the ground that Penal Law § 70.00, which provides the penalty for such crime, is unconstitutional, and alternatively, for dismissal of this count in the interest of justice.

A Suffolk County Drug crime lawyer said that the Defendant’s application is based upon the affidavit of a psychiatrist, who has examined the defendant and determined that the defendant is emotionally disturbed and in need of therapeutic intervention. The psychiatrist feels that unless the defendant receives appropriate treatment, suicide would be a distinct possibility. It is the doctor’s opinion that the intense psychiatric treatment and drug rehabilitation the defendant needs would not be available in a penal institution. The instant section, therefore, as defendant contends, is unconstitutional as to him in that it provides for a mandatory minimum period of incarceration of one year and constitutes cruel and unusual punishment.

The People cite s case, in opposition to this motion. In said case, the defendant leveled his attack upon the constitutionality of Article 220 of the Penal Law on the ground that cocaine, the substance the sale and possession of which the defendant was indicted for, was improperly classified by the legislature. It was the defendant’s contention that the improper classification violated the defendant’s right to equal protection.

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Defendant was indicted in January or February, 1974 for the crimes of criminal sale of a controlled substance (cocaine) in the third degree, criminal possession of a controlled substance (cocaine) in the third degree, criminal sale of a controlled substance marijuana in the fifth degree and criminal possession of a controlled substance marijuana in the sixth degree; in addition, in March, 1974 he was indicted for the crime of criminal possession of a controlled substance marijuana in the sixth degree.

A Suffolk County Criminal lawyer said that during his trial Defendant pleaded guilty to the crime of criminal possession of a controlled substance in the third degree in satisfaction of all counts of both indictments. At that time defendant was advised of the consequences of his plea and that the mandatory minimum sentence was one year to life. A month later, and before sentencing, his counsel moved to vacate the conviction and to substitute a youthful offender adjudication on the ground that the statute forbidding the application of youthful offender treatment to persons indicted for class A felonies was unconstitutional. The motion was denied and defendant received a sentence of one year to life.

On this appeal defendant contends that the statute is unconstitution and that he must be resentenced as a youthful offender.

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This is a recommitment proceeding wherein defendant was at the scene of a drug raid for the purposes of purchasing marijuana. He refused the order of a police officer to leave and was arrested for disorderly conduct. As he was being placed under arrest, he pulled out a six-inch hunting knife and attempted to stab the officer. As a result, he was also charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. Following arraignment on these charges, he was released on his own recognizance and then engaged in various criminal acts in New Jersey, which resulted in his arrest and confinement at a Psychiatric Center.

A Suffolk County Criminal attorney said that during his confinement, which lasted from May 1984 until April 1986, defendant reported aural and visual hallucinations, claiming in one instance that he was seeing snakes, bugs and images of Satan and was hearing voices telling him to get a gun and blow his brains out. He also claimed that he communicated with God, worked for God, was God, that he feared that Satan would kill him because he was an archangel, and that he was depressed and wanted to die.

As a result of the observations as well as examinations of respondent, he was diagnosed as a chronic undifferentiated schizophrenic with acute exacerbation. His treating psychiatrist prescribed a high dosage of anti-psychotic medication. The doctors agreed that he presented a danger to himself and others and thus, despite the medication’s beneficial effects, required continued hospitalization on a closed ward until he was stabilized on it.

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A Suffolk Marijuana Possession Lawyer said that, the defendant is charged, with Criminal Possession of Marijuana in the Fifth Degree, in violation of Penal Law § 221.10(1), and, , with Driving While Intoxicated DWI, Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, Operating an Uninsured Vehicle, Operating Without a Seatbelt, and Unauthorized Possession of a License, in violation of VTL §§ 1192(2), 511(1), 319(1), 1229(c)(3)(a) and 509(6), respectively, as well as Possessing Alcohol while being under twenty-one (21) years of age, with intent to consume, in violation of Alcohol Beverage and Control Law § 65-c. All of these charges arise out of the same incident of October 14, 2007.

A Suffolk Criminal Lawyer said that, on October 14, 2007, at approximately 9:19 p.m., the Officer, an eleven (11) year member of the Nassau County Police Department, was on patrol in the vicinity of the South Gate Shopping Center located in Massapequa Park, New York. At that time, the Officer was alone, in uniform, and traveling in a marked police car, driving from the back to the front of the shopping center. As he came around to the front parking lot, Officer observed a dark vehicle parked approximately fifty (50′) feet away, within the confines of a parking space, in front of the King Kullen supermarket, with two (2) males standing outside the vehicle, one (1) of which he observed on the passenger’s side of the vehicle making the motion of throwing objects at the supermarket. Upon seeing this, Officer turned off his headlights so that he might further observe these individuals. Shortly thereafter, upon seeing the Officer, the two (2) individuals entered the vehicle by which they were standing and began to pull away. As the passenger got into the vehicle the Officer observed him place an object which looked like a beer bottle down beside the vehicle.

A Suffolk Drug Possession Lawyer said that, seeing this, the Officer pulled up behind the vehicle and activated his emergency lights and siren to effectuate a stop. The vehicle traveled a short distance, now no longer within a single parking space, but straddling the lines between two (2) spaces. Upon stopping the vehicle, Officer approached the driver, who he later identified as the Defendant, and asked for his license, registration and insurance card. The Defendant produced a license and registration, but not an insurance card. At that time, he also observed an open beer bottle next to where the vehicle had been parked; and, upon looking into the vehicle, saw an unopened bottle of beer on the floor behind the passenger. While standing next to the Defendant’s vehicle, approximately eighteen (18″) inches away from the Defendant, the Officer noticed the Defendant’s speech to be slurred, his eyes bloodshot and glassy and the odor of alcohol emanating from his breath. The Officer testified that as he spoke to the Defendant, the Defendant was relatively cooperative, but was not forthcoming with his answers to the officer’s questions. The Officer then asked the Defendant to step out of the vehicle for the purpose of conducting field sobriety tests (“SFSTs”).

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In this Drug crime, a motion to suppress physical evidence upon which a hearing was ordered. At the conclusion of the People’s proof the Defendant moved to dismiss and the Court directed that a memorandum of law be submitted as to the ‘standing’ of the defendant to suppress the evidence.

A Suffolk County Criminal lawyer said that in February 1968, a Detective attached to the Narcotics Squad of the Suffolk County Police Department, received a telephone call from a postal inspector at the Rocky Point, Suffolk County County, New York, Post Office.

The detective was advised that a package had been received addressed to an individual. This call was made to him pursuant to a prior request by the Narcotics Squad that it be notified if said individual received any packages since the Squad suspected him of dealing in criminal narcotics. Together with another detective, the detectives went to the Post Office at about 2:30 p.m. where he met with the postmistress and was shown a package consisting of brown paper covering a shoe box within which was newspaper and a brown paper bag containing a plastic bag which in turn contained approximately a kilo of marijuana. All of this was not visible to the detectives at that time. The package was received at the Post Office, and is so marked, in a damaged condition with the brown paper torn off one of the ends and the shoe box opened about 1 1/2 inches in width along the entire and of the shoe box.

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The judgment convicted appellant of the sale (first count) and possession (second count) of a narcotic drug, marijuana, sentenced him to a term of five to seven years on the first criminal count and suspended sentence on the second count. The evidence produced by the prosecution indicated that appellant had sold marijuana to a person, who was employed by the Suffolk County Police Department at $75 a week to uncover evidence and otherwise entrap suspects in connection with the sale of narcotics. He had entered such employ around June, 1965, after he had been convicted of petty larceny and given a suspended sentence.

A Suffolk County Criminal Drug Crime lawyer said that the sale was allegedly made in September 1965, in West Sayville, Appellant testified on his own behalf and denied that he had sold any marijuana. Moreover, he maintained that he was at his karate school, at the time of the alleged sale. His alibi was a plausible one and, moreover, there was testimony from ostensibly disinterested witnesses tending to support it, thus creating a close question as to whether he was present at the time and place when and where the sale allegedly took place. Yet, there was not a single instruction to the jury on alibi. Appellant’s attorney requested an instruction thereon.

In court’s opinion, the response of the court was not only inadequate but also unclear. Under the circumstances of the case, the court should have charged substantially as follows: ‘If proof as to an Alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an Alibi, it may have been Possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded. If proof as to an Alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal’. In other words, it is not necessary or required that a defendant should show that it was impossible for him to have committed the crime. Under the circumstances, and in the interests of justice, the conviction should be reversed and a new trial ordered.

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