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Drug sales are discovered by police


This case concerns fortunately rare and inexplicable police misconduct. The case involved is a reprehensible police action including violence and deception, culminating in the further deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine, for which he was convicted and sentenced to 15 years to life at Attica. At the time of trial, the defendant was in his mid-twenties and was a graduate student and teacher at Penn State University, on the brink of receiving his doctoral degree in plant physiology and biochemistry. He resided at State College, Pennsylvania. Although he admitted to having used three controlled substances on very few occasions, he had no prior criminal record for gun possession.

The events leading to the defendant’s conviction trace back to December 5, 1974 when a young man with an unsavory drug history, was arrested by the New York State Police in Steuben County for heroin possession, a class A-2 felony punishable by a 15-year to life term. At the time of his apprehension, he was on bail pending an appeal from a 1973 conviction, based on a guilty plea for the crack possession in the fourth degree, for which he had been sentenced to an indeterminate term of zero to three years at the New York Correctional Facility at Attica.

The man, who at the defendant’s trial admitted to being an inveterate user of drugs, including amphetamines, sedatives, hallucinogens, marihuana and heroin, and a seller for profit to maintain his habit, was interviewed after his arrest on December 5, 1974 at the New York State Police substation at Painted Post. As found as a matter of fact by the trial court, during the questioning, an investigator of the New York State Police struck the man with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. The man testified that this abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said that he may as well forget about it. They swear that the man fell from the substation on the steps. this is similar to domestic violence.

Following his seizure on December 5, 1974, the man was held without bail at the Steuben County Jail until December 24, when he was released. By December 23, one of the officers involved in his case had received a lab report showing that the capsules found on the man which were the basis for his class A-2 felony charge and which had been purchased from the defendant, were not controlled substances at all. Rather than being amphetamines of a type referred to on the street as Black Beauties, they were in fact nothing more pernicious than caffeine. However, the man was not told of this until sometime later, at the trial of this matter after he had been used by the police as an informant of the case.

Upon the advice of his attorney, and while suffering under the contrived delusion that he was still facing a long prison incarceration if found guilty of the A-2 felony on top of his previous conviction, the man agreed to assist the State Police as an informant. Although not specifically promised that his aid to the police would result in a lesser sentence, his attorney advised that this would provide him with a bargaining position with respect to the charges against him. The violence and threats of the investigator were not the reason for his co-operation, so he stated. Nevertheless, the trial court found that the man testified he would not have aided the police were it not for the fact that they deceived him by not revealing that the charges relating to the December 5 arrest would not stand up in court.

The man began his informant activities by telephoning various persons indiscriminately for the purpose of setting up drug sales in which the police would arrest the sellers. He made collect calls and one of the individuals contacted was the defendant, whom he had known for two years through a mutual friend at State College. The defendant’s version of the conversations is that the man cried and sobbed on the phone, relating that he was facing 15 years to life in Attica, that his parents had effectively cast him from the family home, that he was running out of friends, and that he was looking for ways to make money to hire a decent lawyer. The man’s recollection was that he had not made the remarks in the manner described by the defendant, but he otherwise corroborated the defendant’s version. He admitted telling the defendant that he was in trouble, that the police had beaten him, that he feared going to Attica, and that he needed a score or deal so that he could hire an attorney and make bail.

Between December 24, 1974 and January 4, 1975, the man made seven phone calls to the defendant before finally arranging a sale. Initially, he sought to buy heroin, but the defendant flatly refused. As to cocaine, the defendant tried to put him off by saying that there was nothing worthwhile, but the man persisted in his efforts to get the defendant to make a sale.

The sale was scheduled for January 4, 1975. The State Police claimed no knowledge of the man’s prior negotiations, but had spoken to him concerning the sale in general. The investigator, who had previously struck him, detailed the specifications to his victim-turned-informant. The man said he might be able to get an ounce of cocaine, but the investigator told him to get two because it was his experience that one never gets exactly what is asked for and he wanted a sale of at least one ounce to obtain a conviction for a higher grade of drug crime. The defendant feared New York’s drug laws and did not want to enter the State, but the investigator instructed the man that the transaction must take place in New York where he had authority to make an arrest.

The meeting place finally settled upon was a Bar, which the man told the defendant was in Lawrenceville. What the man did know, and the defendant did not, was that the bar was actually in the Town of Lindley, Steuben County, New York. The State line is several hundred yards southerly of the bridge and is designated by a stone marker, which at the time of the defendant’s visit had crumbled and was obscured in the vegetation alongside the road. The Bar is situate between the hidden stone marker and the bridge sign and thus is located in the Town of Lindley in New York State, rather than in Lawrenceville, Pennsylvania, as the defendant had been led to believe. Although the man devised the scheme for bringing the defendant into New York, it was the State Police investigator who independently determined that the proposed location was within his jurisdiction.

The defendant’s precautions notwithstanding, he was arrested in the course of the transaction outside of the Bar. The man was called as a material witness. So was the defendant’s former paramour who testified for the prosecution in return for a promise of life-time probation for her part in the sale. This was not considered petit larceny or grand larceny.

Following a trial, without a jury, at which the defendant raised the defense of entrapment and urged that his due process rights were violated, the County Judge found him guilty of criminal sale of a controlled substance in the first degree in violation of section 220.43 of the Penal Law, and imposed sentence. The Appellate Division affirmed, but two Justices vigorously dissented. For reasons which follow, the order is reversed and the indictment is dismissed.

Each person has their own way of looking at a given situation.

Some things could be just for others but could show unfairness to some. If you think that you were wrongly convicted of drug crime, have the NYC Drug Lawyers and New York Criminal Attorneys from Stephen Bilkis and Associates look at your case.

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