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Jury Given Incorrect Evidence


In 1988, a man and his friend along with their two wives were running a drug enterprise out of a one room apartment with an attached kitchen located on 88th street in Queens, New York. A New York Drug Crime Lawyer said an undercover police officers had been focused on this apartment for several weeks. In fact, they had conducted undercover narcotics purchases on three separate occasions.

They were made on September 13, September 20, and September 29. After making all of these purchases, the police officers were able to obtain a search warrant to search the residence. After making the purchase on the 29th, the officers executed the search warrant on the residence. They uncovered several tinfoil packets of cocaine and angel dust. One packet of cocaine was located on the floor in between the couch and the wall. It was about a four or five inch space between the wall and the sofa. A New York Drug Possession Lawyer reported that six dollars was located in a closet that had cocaine residue on it. In another closet officers recovered $110 which was the money that was marked by them as the money that they had used to purchase narcotics at that location. The $110 was mixed in with another $850 in cash that was hidden in a child-sized purse. In the last closet, they located $3,630 in cash.

All four of the defendants were present when the search warrant was executed. They were all charged with possessing a narcotic with the intent to sell it. It is legal practice to charge everyone in a room with the possession of a narcotic that is in the room since all of the people are found to have knowledge of or should reasonably have known that the drugs were there. The drugs do not necessarily have to be in plain view. The drugs can be in a container or other item that is accessible to any of the occupants of the room. The narcotics can be in a completely separate room if they are visible to the occupants of a different room. In this case, the narcotics that were in the room, was the one packet that was located between the sofa and wall. a Nassau County Drug Possession Lawyer said the court ruled that that particular packet could not be deemed as accessible to everyone in the room or that all of the occupants of the room would have known that it was there. The fact that it was not in open view or in a container in open view makes it impossible for the police to assume that anyone other than the one owner could possibly have known that it was there. When it is determined that narcotics or other illegal drugs are in open view and in close proximity to persons, it is referred to as the drug factory presumption of Penal Law ยง220.25 (2).

The trial court in this case chose to relax the standards on allowing the presumption on the basis of the packet of drugs behind the sofa. A Queens Drug Possession Lawyer said the trial court erred according to the Supreme Court. Without the packet of drugs that were discovered behind the sofa, there was no legal application to the drug factory presumption. This is in spite of the fact that several purchases of narcotics were made on different dates by undercover officers. The fact that the jury was directed to include this information in consideration by using the drug factory presumption was an error that cannot be ignored. There is no way for the Appellate Division to determine that the jury was not swayed in their decision by applying the drug factory presumption. It is for that reason that the case was overturned and returned to the courts for retrial without any implication of the drug factory presumption.

At Stephen Bilkis & Associates there is a group of experienced Queens Criminal Lawyers. They have convenient offices throughout New York and the Metropolitan area. Their Queens Drug lawyer is the best choice for your defense.

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