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Court Modifies Defendant’s Sentence


The man was charged with criminal possession of a controlled substance, in particular of possession of a narcotic drug with the intent to sell and criminal possession of a controlled substance in the fifth degree, in particular of knowing and unlawful cocaine possession with 500 milligrams or more. The man moved to cover up the physical evidence recovered upon his arrest. After the suppression hearing, the trial court denied the man’s motion. A Sandoval hearing was also held at which the man sought to cover up his nine prior drug crime convictions.

Consequently, the man proceeded to trial but did not testify. A New York Sex Crimes Lawyer said the evidence adduced at the trial established that the arresting officer saw the man twice, reaching into a brown paper bag and drop vials into an unidentified woman’s outstretched hand. The officer, who observed the man from a distance, also testified that it appeared to him as if the man were counting out the number of vials he was depositing into the woman’s hand. As the officer approached the man, the woman fled and the man was arrested. The brown paper bag, which contained thirty-one vials, was recovered from the man. Upon analysis of the contents of the vials by police chemists it was concluded that the vials contained 1,591 milligrams of cocaine. The jury acquitted the man of the possession with intent to sell count but convicted him of the fifth degree possession count.

The legislature had decided that persons who illegally possess larger quantities of controlled substances should be punished more severely. The conduct is more repugnant and presents a greater threat to society because drug possession is not a strict liability crime, however, an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater. A purpose of the knowledge requirement is to avoid over penalizing someone who unwittingly possesses a larger amount of the controlled substance than anticipated.

The appellate division modifies the conviction by reducing it from criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree and substitutes a definite sentence of 1 year. The man’s sufficiency claim is preserved by his motion at the end of the case. A New York Sex Crimes Lawyer said the evidence was insufficient to support the finding that the man knew that he possessed more than 500 milligrams of cocaine.

The jury rejected the claim that the man was a seller of drugs when they acquitted him of criminal possession of a controlled substance with intent to sell. Based on records, the pure weight the man was charged with possessing, transposed to ounces, is .055685 ounce. The amount which exceeds the misdemeanor level is .038185 ounce. A Queens Sex Crimes Lawyer said to conclude that the man could gauge a difference in weight of less than 4 one-hundredths of an ounce, defies all human experience. The majority misunderstand the discussion of comparative weights. It has nothing to do with the potency of controlled substances and it has to do only with the human ability to gauge infinitesimal weights simply by touch, unaided by instruments of any kind.

The majority begins its opinion by reviewing the man’s criminal history. What is omitted from the listing is the fact that six of the nine arrests dealt with marijuana alone. Marijuana possession is the subject of an aggregate weight standard and not the pure weight standard which is an issue. A Nassau County Sex Crimes Lawyer said the court of appeals made clear the difference in proofs permissible in pure weight and aggregate weight cases. Further, there is no indication in the record that the man ever previously involved in cocaine possession, the subject of the instant case includes his last arrest, some four and a half years, and prior to the arrest which gives rise to the man’s appeal.

We cannot say that every event in our life is always enjoyable. There are times that we encounter unexpected circumstances such as wrongful accusation from people around us. If you want to prove that you’re innocent of any crime, seek the help of NY Criminal Lawyers. If you got involved with drugs possession, you can ask guidance from the New York Drug Lawyers at Stephen Bilkis and Associates.

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