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Drug Crime Defendant Moves for Acquittal for Failure to Prove Possession


The appellant in this case was charged on several drug related charges including possession of cocaine and heroin, possession of cocaine, marijuana, and heroin possession, with the intent to sell, two counts of attempted first degree murder, and displaying a firearm during the commission of a felony.

A New York Criminal Lawyer said the appellant was convicted on the charges of possessing marijuana with the intent to sell, trafficking cocaine, and possession of cocaine with the intent to sell. He was sentenced to five years for the marijuana charge, ten years for the trafficking cocaine charge, and five years for possession of cocaine with the intent to sell.

Case Background

The appellant was apprehended after a “shoot-out” with the police department who had come to his apartment to execute a search warrant. Earlier on the same evening the appellant had sold cocaine to an undercover police officer.

A Brooklyn Criminal Lawyer said when the appellant was being taken away a detective noticed a bulge in the appellant’s sock. He reached into the sock and withdrew $1000 in cash and a bunch of pink capsules that contained white powder. Lab tests showed that the powder was cocaine. Of the $1000, $800 was the cash that was used by the undercover police officer to purchase cocaine earlier in the evening.

The search warrant was executed and the detective found an open package of white powder, a triple beam scale, and several clear capsules that were filled with white powder, a cutting mirror, and some marijuana in plain view. A flight bag was found in a closet containing several pounds of marijuana inside.

Procedure History

The appellant was put on trial in front of a jury. At the end of the state’s case against him the appellant moved for a judgment of acquittal on the count of possession of marijuana with the intent to sale. He argued that the state did not make the requisite of proving ownership of the apartment, control of the drugs, or that he had knowledge of the marijuana that was kept in the closet. This motion was denied by the trial court.

Case Discussion and Decision

The appellant argues that the trial court made an err when they did not grant him the motion for judgment of acquittal because the state did not prove possession. He argues that the state must show that the defendant had dominion and control over the contraband and that he knew about the contraband and where it was stored.

The appellant is also opposing the sentences that he was given for the possession of cocaine charges arguing that he should have only received one sentence for the charges.

The court has reviewed the case and determined that simply because there were two statutory offenses does not mean that they should have been independently punishable.

For this reason the court is affirming the sentence for the trafficking cocaine conviction and reversing the sentence for the possession of cocaine charge. All other convictions are confirmed as well.

Stephen Bilkis & Associates offers free consultations to any one that visits our office for the first time, whether you have been charged with a drug crime, theft or sex crimes. You may call any of the offices located throughout the metropolitan area of Manhattan to speak with one of our experienced attorneys.

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