New York Criminal Lawyer Blog
The defendant is appealing his conviction for possession with the intent to distribute marijuana and possession (marijuana possession) with the intent to distribute Quaaludes. He is appealing his sentence as well. The defendant argues that the district court was wrong in the instructions that they gave to the jury, that more than one sentence for possessing more than one drug is not authorized, and that the sentenced that was imposed underneath one of the counts was in excess of what is allowed by the state.
Case Background
A New York Criminal Lawyer said the defendant was convicted on two counts of possession of a controlled substance. The first count convicted the defendant of possession with the intent to distribute marijuana. The second count convicted the defendant of possession with the intent to distribute Quaaludes.
The trial court sentenced the defendant to one year confinement followed by a special parole term for the second count. The defendant was sentenced to six years of confinement followed by a special parole term for the first count.
Case for Appeal
The defendant raises three points on appeal. First, he states that the specific intent instruction that was given to the jury was narrow in its scope and constitutes plain error. Second, the defendant states that although he had possession of two drugs the possession constituted one act, possession of a controlled substance. Finally, the defendant contends that the sentence of six years in prison for possession of marijuana exceeds the allowable punishment for this crime
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Government Argument
The government has made the argument that the jury instruction for specific intent was adequate and that the counsel for the defense had requested a third count to be applied to it. The government further argues that because the two drugs involved in this case are in different categories, which is the reason for separate sentences being applied. The government agrees with the contention that the length of the sentence for the marijuana charge is in excess of the state statute.
Case Discussion and Decision
The court must first review whether the trial court committed a plain error in the challenged jury instruction and if multiple sentences for possession of two different drugs is permitted.
In regard to the jury instruction the defendant argues that the instructions that were given were two narrow. He did not object during the hearing in this regard. The court reviewed the way the information was presented to the jury and has determined that while it could have been worded better, it was not so prejudice to warrant manifest injustice.
In regard to the sentencing for two different drugs we find that the laws allow this to occur when the drugs in question fall into unique categories. For this reason, consecutive sentencing is appropriate.
In regard to the sentence of six years for possession of marijuana, each party is in agreement that this is in excess of the law. The law clearly states that the sentence shall be no more than five years for this type of possession charge. For this reason, the court will remand the case back to the district court for resentencing.
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