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Defendant Contends Constructive Possession Could Not be Established in Drug Case

An undercover officer observed the accused hand a third party several glassines of heroin in exchange for money. When the officer solicited two glassines, the accused insisted that the alleged buyer first snort some heroin and, upon the officer refusing, the accused walked away without consummating that sale. When the backup team approached the accused, he ran, discarding 20 glassines of heroin during his flight. A New York Criminal Lawyer said this gave rise to charging the accused with criminal possession of a controlled substance in the third degree. When the accused was apprehended, he had an additional three glassines of heroin on his person and two $20 bills in his pocket. This gave rise to charging the accused with criminal sale of a controlled substance in the third degree. Eight glassines of heroin were recovered from the accused man’s underwear at the precinct. The accused testified that he was an addict who snorted several bags of heroin daily, that he carried the drugs only for his own use, that he had purchased, rather than sold, the heroin, and that he had resisted the advances of a stranger who turned out to be the undercover officer. The evidence sufficiently proves the charges. However, procedural concerns require a reversal of the criminal possession conviction.

A New York Criminal Lawyer said after summations and submissions of the final charges to the jury, the counsel requested submission of criminal possession of a controlled substance in the seventh degree as a lesser included drug offense of the third-degree possessory offense. The court refused, not on any statutory basis, but because the timing of the request contravened the court’s policy. The record supports the defense counsel’s representation that, in fact, he had previously indicated to the court’s Law Secretary that the request might be made, but that counsel would have to hear the accused man’s testimony first. The complainant concedes that if the request had been timely made, the accused would have been entitled to the charge. Although it is manifestly preferable that both counsel know all the charges to be submitted to the jury before summations, the statute appears to authorize such request to be made by counsel at any time prior to the submission of the case to the jury, and the Court of Appeals has characterized this as a general rule, which also reflects the practice in the Second Department. In the present case, there is no indication that the timing of the request manifested an abusive practice, or that granting it would have prejudiced the complainant. Under the circumstances of the case, the charge should have been given to the jury. In reversing and remanding this charge for trial, the remaining charge of which the accused was convicted remains unaffected, insofar as it depended on a different item of evidence.

In one of the heroin related cases, as a result of his alleged sale of heroin to a confidential informant in two controlled buys and his heroin possession at the time of his arrest for those sales while on his way to a third such transaction, the accused was charged by indictment with, among other things, five counts of criminal sale of a controlled substance in the third degree. Following a hearing, a New York Drug Possession Lawyer said the County Court denied the accused man’s pretrial motion to suppress all evidence resulting from his warrantless arrest, finding that the police had probable cause to arrest him. The accused was then convicted as charged following a jury trial. The County Court sentenced him as a second felony offender to five concurrent prison terms of 11 to 22 years and he now appeals.

Initially, County Court properly determined that probable cause existed for the accused man’s arrest. At the suppression hearing, the accused failed to preserve his present contention that the reliability of the confidential informant was not sufficiently established by the prosecution. In any event, the confidential informant knew the accused from past transactions, identified him from a photo array and gave police the heroin obtained in two controlled buys. The informant’s description of the illegal sales for which the accused was arrested was corroborated by the recorded conversations between the informant and the accused, and the observations of the officers monitoring the controlled buys. This evidence amply established the informant’s reliability.

A New York Sex Crimes Lawyer said the court rejects the accused man’s contention that the evidence was not legally sufficient to demonstrate that he possessed a bundle of heroin which was found in the police vehicle after his arrest. Contrary to the accused man’s argument that constructive possession could not be established by his mere presence in the rear of the vehicle where the heroin was found, the prosecution presented circumstantial evidence of his actual heroin possession. One of the arresting officers, who also drove the police car, testified that he had searched the rear seat of the police car shortly before arresting the accused, he had found no contraband at that time and he then found a bundle of heroin under the rear seat immediately after the accused exited the car. In resolving the issues of whether the officer actually searched the police car before arresting the accused and how the heroin escaped detection when the arresting officers patted him down for weapons, the jury was free to consider that a third controlled buy had been arranged and the accused was on his way to the informant’s apartment at the time of his arrest. Accordingly, the verdict was not against the weight of the evidence.

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