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Defendant Contends Testimony was Prejudicial


A man was convicted of multiple counts of criminal sale of marijuana and criminal sale of a controlled substance. A New York Criminal Lawyer said since the investigation which led to the man’s indictment was an ongoing one and the sales were to persons who purchased the drugs for their own use or resale, the police were not able to confiscate each substance transferred. Therefore, at trial, the complainant had to rely largely on the testimony of the buyers to establish that the substances purchased were in fact marijuana or phencyclidine.

As to the marijuana counts (drug possession), the jury found the man guilty of selling marijuana to four persons who testified for the complainant. Each of these witnesses was questioned as to his familiarity and expertise with marijuana, and each admitted to great familiarity with the substance. One testified he had used it 20 times and was positive that the substance he purchased from the man was marijuana. Two others testified that they used marijuana 50 times or more and were familiar with the effect of marijuana and the substance they purchased several times from the man gave them the expected effect. Another testified that he had smoked marijuana many times before and the substance purchased from the man was like that which he had previously smoked.

The man was also found guilty of criminal selling of phencyclidine to three persons who testified for the complainant. One witness testified that he used this drug five or ten times with the effect that it leaves his mind blank. He stated that while he is not an expert on PCP (phencyclidine) he knew the drug he purchased was PCP because of his experience with it. Another testified that he had learned some years earlier to recognize PCP from its taste. A Manhattan Criminal Lawyer said the third testified she had used phencyclidine seven or eight times and recognized the substance by its nasty taste and the effect it had, making her feel drunk and drowsy. She had never obtained phencyclidine from anyone except from the accused man.
While the testimony concerning marijuana is clearly stronger than that establishing that phencyclidine was the substance sold to the witnesses, there is other corroborating evidence that the latter drug was sold to the witnesses. There were numerous tapes of telephone conversations between the man and the witnesses in which he agreed to sell phencyclidine to them. While the terminology in these conversations was generally guarded, the buyers, when asked to interpret what was said, stated that they were referring to the purchase of PCP. Further, one of the witnesses testified that he regularly made bimonthly purchases from the man for resale. Finally, pursuant to a search of the man’s home, the police seized four tinfoil packets containing a white, powdery substance. Upon chemical analysis these substances proved to be phencyclidine.

In urging that the trial court erred in permitting purchaser-users to testify that the drugs purchased were marijuana and phencyclidine, the Court of Appeals did not state that a person who used marijuana is not qualified to testify that the substance used was the forbidden substance. Instead, the court stated that the State should not be willing to rest a conviction and prison sentence solely on a young person’s two or three isolated experiences with what he thinks is pot. The test, then, in situations where the illegal substance is not available for analysis, is the experience of the witness and the nature of his qualifications to identify the substance at issue. It is a matter of degree. A conviction was sustained based on the testimony of an eighteen year old narcotics user who asked the accused man if he had heroin and upon being given a white powder and inhaling it obtained a high feeling. Another witness asked the man to get 50 capsules of heroin and upon receiving capsules of a white substance he injected the powder diluted with water into his veins and got a good feeling.

To sustain a conviction for selling drugs, it is not essential that the substance be produced in court. Witnesses, through whose testimony the precise identification of the drug is sought, as in the instant case, are essentially expert witnesses. Such a witness may be qualified to speak from actual experience, from observation or from study and must be shown to be qualified as an expert on the particular subject concerning which he is called upon to testify. An expert who bases his opinion upon facts of which he has personal knowledge must first testify to these facts before expressing his opinion. These qualifying tests have been met in the instant case. While it is for the trial judge to decide whether the witness is qualified to testify as an expert, the extent of the expert’s qualifications may be considered by the jury on the question of the weight to be given his testimony.

Records revealed that while New York appellate courts have had little occasion to treat the precise question presented by this case, courts of other jurisdictions are in accord with the views expressed herein. Thus, the testimony of teenagers who had a familiarity with marijuana were permitted to testify that when they smoked the substance purchased from the accused they became high and were of the opinion that the substance was marijuana. Reactions and acquired knowledge from the use of a drug such as marijuana qualify a witness to testify that what he later used was the forbidden drug. A heroin addict who described how heroin is obtained and packaged, the paraphernalia used and the manner in which it is used was permitted to testify that the substance she obtained from the accused was in fact heroin. The court observed that if users demonstrate knowledge of the narcotic as such, they are competent to testify. The weight to be given such testimony is for the jury. A drug addict who had used heroin daily over a long period of time was permitted to testify that she knew the effect of heroin and that the substance she purchased from the accused man gave her the effect of heroin. The court was of the view that an unqualified requirement that chemical analysis was needed to sustain a conviction for sale of the drug would, where the substance has been consumed, tend to nullify the act and permit much illicit traffic in drugs to be carried on without restraint. Again, an addict who had used various drugs over a period of six years and who reacted differently to the varied drugs was permitted to testify that upon using the substance in question he received a reaction similar to that which he experienced from heroin. The court also found it significant that throughout the relevant period the parties acted consistent with the idea that the substance was heroin. A witness was permitted to testify that the substance she had received from the accused man was marijuana, the basis for her conclusion being her admitted knowledge and use of marijuana, rolling the cigarette herself and becoming high when she smoked it. This was found to be a sufficient foundation for admitting her testimony, to be weighed and judged by the jury.

In a heroin sale prosecution, the complainant relied on the testimony of a former addict who purchased a quantity of heroin from the accused. She testified that she had used heroin or cocaine hundreds of times over the past two years or more. She explained the effects heroin had on her and that she got these effects from the substance she purchased from the accused man. The court permitted the witness to express the opinion that the substance she purchased and used was heroin. Apparently of the view that testimony of drug addicts must be regarded more circumspectly because of their addiction, the court stated that as an expert witness it will be more necessary for him to fully develop his reasoning process as to why and how he determined that the substance that he purchased and used was heroin. To qualify a heroin addict as an expert it is necessary to establish the number of times that he has used heroin. Then it is necessary for him to describe his reactions to the heroin when it was used on previous occasions. Finally, it is necessary for the addict to state that he purchased what he thought was heroin and that he received the same reaction from this purchase that he had received earlier. The standards thus enunciated as applicable to the testimony of addicts are equally applicable to any consumer of a drug who testifies on the identity of the drug in a sale prosecution case.

In light of the foregoing, the court did not err in permitting consumers of the drugs in question to testify that the substances they received from the accused man were marijuana or phencyclidine. The testimony was circumstantially supported by surveillance, videotapes, wire taps and chemical testing of a substance found in the accused man’s home. The court imposed a sentence of 2 1/3 to 7 years on the marijuana convictions and the same sentence on the phencyclidine convictions, both sentences to run consecutively (along with a one year concurrent sentence on another charge). The court stated that his total sentence is four and two-thirds minimum and fourteen maximum. This was an error. The drug crimes for which the man stands convicted occurred in April and May 1978. The Penal Law in effect at that time provided that if the sentences run consecutively, the minimum periods of imprisonment merge in and are satisfied by service of the period which has the longest unexpired time to run, and, except as provided in this subdivision, the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms.

However, the court apparently imposed sentence pursuant to an amendment which became effective on September 1, 1978, after the date of the criminal act in question, and which provided, in pertinent part, that if two sentences run consecutively, the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods.

The general savings clause applicable to all legislation provides that the repeal of a statute or part thereof shall not affect or impair any act done, the offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected.

Thus, the man was entitled to be sentenced under the provisions of law which were in effect at the time when the drug crimes were committed. Particularly in the area of criminal law, statutes which condemn an act innocent when done, or increase the punishment for previously committed crimes, have always been regarded as oppressive and prohibited by the Federal Constitution. The accused man’s conviction is modified to the extent that the minimum sentence to be served is two and one-third years.

The law is continuously being change to be able to adapt to the changes happening in the nation. Even very good laws may no longer apply to our society today and their corresponding punishments may already be outdated. The duty of the government is not only to catch law offenders they should be converted into productive members of the society. Catching them does not end the problem it is only the beginning of the long journey towards the better. If you want a second chance and want to win your battle against your lawsuit, consult Stephen Bilkis and Associates for the NYC Heroin Possession Lawyers or the NY Intent to Distribute Attorney. Whether you have been charged with drug possession, sex crimes or theft, they are there to help.

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