New York Criminal Lawyer Blog

The matters before the Criminal Court on the defendants’ motions to dismiss the charges against them of criminal solicitation in the fifth degree on the ground that there exists some jurisdictional or legal impediment to the defendants’ conviction and on the ground that the accusatory instruments are defective. For the reasons set forth below, the Court grants the motions to dismiss the charges of criminal solicitation in the fifth degree.

A New York Criminal attorney said that all of the defendants were arrested on various streets in the Northeastern section of the City of Rochester allegedly attempting to buy small amounts of marijuana. Those streets, among them Hudson and Conkey Avenues and Berlin Street, have become known as open-air drug markets where marijuana, and in some areas cocaine and heroin, can be purchased on the streets. Those who live and work in those areas have become frustrated at the misuse of their neighborhoods for drug activity, that activity bringing with it increased public safety concerns for themselves and their families.

The potential for violence in connection with the open-air drug trafficking was illustrated and underscored in January 1995 with the murder of an individual, a resident of the surrounding suburb of Penfield, New York, was shot to death while reportedly attempting to purchase marijuana in one of these open-air drug markets on Berlin Street.

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Defendant moves to suppress statements that he gave to the police, physical evidence recovered from his apartment, as well as identification testimony of a witness who identified him from a photo array. Defendant R. moves to suppress statements.

A New York Criminal lawyer said that at a suppression hearing pursuant to defendants’ applications to suppress evidence. Six witnesses, all current or retired members of the New York City Police Department, testified on behalf of the People. The defendants called no witnesses. Defendants urge to reject certain material portions of the testimony as incredible and untruthful. They particularly, but not exclusively, focus on the testimony of a Detective, and the contradictions between the testimony in general and the information contained in the paperwork prepared by the police during the investigation. The detective repeatedly contradicted himself on significant points and was forced to retract earlier statements on several occasions. There were instances in which his contradictions were brought to his attention and he was at a loss to satisfactorily explain them. Several of his explanations for his and his fellow detectives’ actions fly in the face of common sense.

A New York Criminal attorney said that the detective was the lead detective in a police team that was investigating of the deaths of 2 individuals. Their bodies had been discovered in the bathroom of an apartment, which was located at West Street. Both men had been bound with duct tape and shot through the head. When the detective and his team went to the apartment in April 2004 they smelled a strong odor of marijuana and observed marijuana residue. The police later discovered that Ashton had been a low-level drug dealer.

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A man is charged with criminal possession of a controlled substance in the third degree. It is alleged that the man was seated in the driver’s seat of a car and that a bag of crack cocaine, which had an aggregate weight in excess of one eighth of an ounce, along with a small amount of marijuana, were inside the car. Another individual in the car was indicted as the man’s accomplice.

About a month later, the man and three other individuals were arrested and charged with criminal sale of a controlled substance in or near a school grounds. In is alleged that the man have handed a bag of heroin to an undercover police officer in exchange for money. It is also alleged that several accomplices directed the undercover officer to the man, one told the officer to try the car to see if the man was there.

Several months after being arraigned, the man applied for judicial diversion. The man was first screened for possible consideration by an addiction and substance abuse counselor. The man told the counselor that he has a 20 year history of weekend binges of alcohol consumption, and has been an intermittent user of cocaine. The counselor recommended that the man be evaluated for potential placement in drug and/or alcohol treatment.

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In this Criminal case, the question presented is whether a positive toxicology for marijuana and a respondent mother’s admission to prior marijuana use are sufficient to establish neglect pursuant to Family Ct Act § 1012 (f) (i) (B) or § 1046 (a) (iii). The Administration for Children’s Services (hereinafter, “ACS”) contends that they are. ACS asserts that the mother’s repeated use of marijuana establishes a prima facie case of parental culpability and that a prima facie case is not rebutted by a showing that the children were never harmed or in danger of harm and were always healthy, well kept, clean and well fed. According to ACS, dismissal of the petition based on its failure to present any specific evidence of actual impairment or imminent danger of such impairment would constitute error as a matter of law.

A New York Criminal lawyer said that Respondent mother contends that a newborn’s positive toxicology for marijuana alone is insufficient to support a finding of neglect because the test result, in and of itself, does not prove that the child was physically, mentally or emotionally impaired, or in imminent danger of being impaired. She contends that relying solely on a positive toxicology for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child.

Additionally, respondent mother asserts that the record is insufficient to establish a prima facie case since no evidence was elicited establishing the quantity, frequency or effect of marijuana use upon her or her ability to care for her children. She emphasizes that she never used or was under the influence and criminal marijuana possession or any other drug while in the presence of any of her children. She underscores that the older children were in the care of the maternal grandmother during these occasions.

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The judgment of the Supreme Court convicting the defendant, after jury trial, of criminal possession of a controlled substance in the fifth degree and seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 2 1/2 to 5 years and 1 year, respectively is affirmed.

The defendant relies on the decision which concluded that the knowingly requirement of Penal Law, setting forth the elements of criminal drug possession of a controlled substance in the second degree, applies also to the weight of the controlled substance, and that the trial evidence was insufficient to satisfy that mental culpability element. The defendant’s challenge here to the sufficiency of proof as to his knowledge of the weight of the controlled substance, however, was not preserved; he failed to object to the charge as given to the jury, and the court’s consideration of his claim is foreclosed as a matter of law.

Moreover, even if the issue had been preserved, it has not been shown that the trial evidence here was insufficient to satisfy the mental culpability element. In examining the record for legal sufficiency, the evidence must be viewed in a light most favorable to the People to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt. The defendant had thirteen vials of crack containing, in all, 1099 milligrams of cocaine, more than twice the 500 milligram element of criminal possession of a controlled substance in the fifth degree set forth in Penal Law. It is not that he would be expected to know the weight of the cocaine by hefting the vials in his hand but that a rational jury might conclude that a person observed making hand-to-hand contacts with several passers-by in the street and in possession of thirteen vials containing 1099 milligrams of cocaine when the police thereafter approached him, would know the nature and weight of the essential element in the product he was carrying. The Court of Appeals recognized that often there will be evidence from which the requisite knowledge may be deduced. However, the Court was dealing with a conviction for attempted possession of psilocybin, a hallucinogen, in a package of mushrooms, and noted that the same inference may be unavailable for such controlled substances measured by pure weight for purposes of the statutory definitions of the crime but customarily combined with other substances to facilitate handling and use. Penal Law, for violation of which the defendant here was convicted, is similarly in terms of pure weight, but of cocaine, a much more common drug in our society and one commonly sold in the form of crack in vials. Here the test being described whether sufficient evidence was presented at trial from which it could be inferred that the defendant had the requisite knowledge of weight would have been met if the question had been preserved. No marijuana was found.

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This is an appeal where defendant was convicted defendant, after a jury trial, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of six years to life, unanimously affirmed.

A New York Criminal lawyer said that in March 2001, New York Police Department Sergeant was supervising a group of detectives in an undercover narcotics operation, and, along with a Detective was parked in an unmarked van on Riverside Drive, when a white Mazda with New Jersey license plates parked in front of them, next to a fire hydrant. The officers watched as defendant exited the Mazda’s passenger side, and a man exited the driver’s side. The two men walked north to a stairway which led to an underpass beneath Riverside Drive.

Approximately 15 minutes later, defendant and the mane returned to the Mazda, and looked around them before getting into the car and driving away. The Mazda drove north on Riverside Drive, then made a U-turn between 138th and 139th Streets, crossing over double yellow lines and pavement “zebra striping,” which designated that crossing and turning were not permitted.

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