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Defendant Claims Due Process Rights Violated in Drug Charge


The police in Brooklyn suspected that a drug repacking business was carried out in an apartment building by the members of one family. They wrote down all the facts they have so far gathered about the heroin-repacking business in an affidavit and they applied for a search warrant. The judge granted them a search warrant and twelve officers formed a raiding party that would serve the search warrant.

When the police arrived at the ground floor of the building, a man was coming out. A New York Criminal Lawyer said when the police announced their presence, the man slammed the front door of the apartment building in the policemen’s faces. He then climbed the stairs to the second floor apartment screaming.
The police used a battering ram to enter the building and they used the same battering ram to gain access to the apartment since the apartment door had been locked and no one was answering the door.

By the time the police officers came into the apartment, no one was in the common dining area. On the dining room table, there were plastic sachets already filled with small quantities of heroin (heroin possession). Each plastic sachet had a stamp-marked piece of paper that had a brand name on stamped on it. There was a big plastic bag that had five ounces of heroin in it, a weighing scale, dilutant, playing cards that had been folded up and used to cut the heroin powder into portions. There were spoons used for scooping the powder, rubber stamp markers and ink marker stamp pads on the table as well. Under the table, there was a duffel bag filled with boxes of identical plastic sachets; there were pieces of paper with the stamp-marked brands; there was cash in small bills.

The police found a woman and her husband in the bedroom, two men in the bathroom holding an empty plastic bag with heroin residue on it and the water in the toilet bowl murky, milky white. There was a fifth man in a second bedroom and he was holding a chair that he had used to smash open the bedroom window that led to the fire escape. All five people were arrested and charged with: knowingly possessing heroin; heroin possession with intent to sell; and possession of drug paraphernalia.

An NY Criminal Lawyer said that during the trial, all the five codefendants pleaded not guilty. They all claimed that they were all the accused woman’s guests at a baby shower she was having at her apartment. All the defendants disclaimed that they knew anything about the drug paraphernalia or the heroin on the dining table. They all claimed that they knew nothing about the drug repacking. They disclaimed any knowledge about the amount of heroin found in the apartment. They all harped on the fact that no drugs were found on their persons and none of the drug paraphernalia was found on them personally. They all presented evidence that they were nowhere near the drugs on the dining table and that they were in other parts of the apartment at the time that the drugs were in the dining room.

After the presentation of evidence for both the prosecution and the defense, the trial court charged the jury and listed down for them all the elements of the crimes charged against all the five co-defendants. One of the elements was the presumption that the law makes that even if the people in the apartment were in other parts of the apartment, they are presumed to know the quantity of the heroin on the dining room table.

All five accused were found guilty of knowingly possessing heroin and heroin possession with intent to sell. They were all acquitted of the charge of possession of drug paraphernalia. The woman accused filed a motion to vacate her conviction on the ground that there was no sufficient evidence adduced at trial that she had knowledge of the amount of heroin there was. She claimed that this is one of the elements of both crimes, that she knew the amount of heroin she had in her apartment.

The Court held that the woman never alleged that there was a violation of her right to due process of law in the service of the search warrant or her arrest. She did not preserve this issue on appeal and she did not raise the specific issue of the insufficiency of the evidence against her except in her motion to vacate her conviction. There is no amendment of the law that removes the presumption of knowing the amount of heroin possessed. Her motion to vacate conviction is denied.

Were you accused of knowingly possessing heroin and heroin possession with intent to sell? You must be represented by a New York Drug Crime Lawyer. A New York City Drug Crime Lawyer can help you make sense of the proof required to convict you. At Stephen Bilkis and Associates, their NYC Drug Crime lawyers are willing and ready to sit with you and formulate a viable defense that can raise reasonable doubt. Whether you have been charged with drug possession, sex crimes or theft, they can help.

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