New York Criminal Lawyer Blog

While there are bright and articulate people on all sides of the argument to legalize marijuana in New York State, as it stands now the law is clear. Possession of marijuana ("marihuana" in the New York Penal Law) is illegal. In New York City (Manhattan, Brooklyn, Bronx and Queens) as well as in Westchester County, possession of merely a joint can lead to an arrest or issuance of a Desk Appearance Ticket for Unlawful Possession of Marijuana (New York Penal Law 221.05), Criminal Possession of Marijuana in the Fifth Degree (New York Penal Law 221.10) or Criminal Possession of Marijuana in the Fourth Degree (New York Penal Law 221.15).

The issue for most people, however, is not whether possession is illegal or whether they will be issued a New York Desk Appearance Ticket or be put through the system. Instead, a question often asked to New York criminal defense attorneys is what is the potential punishment and, secondarily, how will this impact the accused's future. This first entry on this topic will address the violation and the misdemeanor crimes involving marijuana possession as well as the potential punishment associated with those offenses. A later entry will address the felony crimes involving the possession of marijuana.

Unlawful Possession of Marijuana (NY PL 221.05)

Unlawful Possession of Marijuana is perpetrated when one knowingly and unlawfully possesses marijuana. Often times the scenario where this offense is charged is where the marijuana is not burning or open to public view, but it is recovered from a pocket or similar location. A "violation," a conviction of this offense will not result in a criminal record. For a first time offender, a fine of no more than $100 will be levied as well as possible court costs.

Criminal Possession of Marijuana in the 5th Degree (NY PL 221.10)

One can be convicted of Criminal Possession of Marijuana in the 5th Degree when one possesses the marihuana in a public place and it is either burning or, alternatively, open to the view of the public. Moreover, even if the marijuana is not possessed as described, a conviction will be sustained if the aggregate weight is more than twenty-five grams but no more than two ounces.

A "B" misdemeanor, this crime is punishable by up to 90 days in jail.

Criminal Possession of Marijuana in the 4th Degree (NY PL 221.15)

A person will be found guilty of Criminal Possession of Marijuana in the 4th Degree if the prosecution proves beyond a reasonable doubt that you unlawfully and knowingly possessed marijuana with an aggregate weight exceeding two to eight ounces.

An "A" misdemeanor, this crime is punishable by up to one year in jail (Rikers Island or the Westchester County Jail).

It is important to note that mere possession and even an admission by the accused does not mean the accused should plead guilty or accept a criminal conviction. Often times there are multiple ways to fight these cases. For example, whether you were issued a Desk Appearance Ticket for marijuana possession or arrested for possessing the contraband, a Marijuana Adjournment in Contemplation of Dismissal (ACD) may be a potential way to resolve your case. Although it should be further discussed with your New York criminal defense lawyer, the case can be dismissed and sealed in year leaving you without a criminal record. Alternatively, if you are charged with Criminal Possession of Marijuana in the Fourth or Fifth Degrees and you are not eligible for a Marijuana ACD, a plea to the violation and a fine may be a way to avoid a criminal conviction.

Beyond the potential crimes and punishments, another important issue that should be addressed in these types of cases is how it came to be that you were stopped and searched by the police. Where did they recover the marijuana? Was it on your person? How did they get into your pockets? What was there probable cause? At bottom, was the search legal? It may be that conduct by the police was absolutely legitimate, but these issues are certainly areas that should be explored.

The above primer for marijuana misdemeanor crimes is just that...a primer. There are many substantive issues and concerns that should be addressed that are beyond the criminal case. Will this impact your certification or licensing? Will you have a record forever if convicted of these crimes? What about if you are only convicted of the violation? The list goes on.

For further information about New York Desk Appearance Tickets, please follow the highlighted link. For information on marijuana crimes, recent legal decisions, newsworthy cases and other offenses, please read the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

The New York criminal defense attorneys at Crotty Saland LLP represent clients in all criminal matters throughout the New York City region. Prior to starting the firm, the founding partners served as prosecutors in the Manhattan District Attorney's Office.

A common felony offense charged by police and defended by New York criminal defense lawyers in the arena of controlled substance, narcotic and drug crimes, is Criminal Possession of a Controlled Substance in the 5th Degree pursuant to New York Penal Law section 220.06(5). A serious crime involving the possession of cocaine, CPCS 5th Degree is a "D" felony punishable from one year to two and a half years in state prison for a first time offender. Obviously, if you are a "predicate felon" you will face more time in state prison. Fortunately, due to changes in the Rockefeller Drug Laws, there are potential ways to avoid state prison that should be discussed with your New York criminal defense attorney.

Having briefly addressed the ramifications of New York Penal Law 220.06(5), the following entry will take a step back and (1) define the offense as it relates to cocaine possession and (2) discuss whether the 500 milligrams is an aggregate weight or a pure weight measurement.

Simply put, Criminal Possession of a Controlled Substance in the Fifth Degree, New York Penal Law 220.06(5) is defined as follows:

If one knowingly and unlawfully possesses 500 milligrams or more of cocaine, one is guilty of Criminal Possession of a Controlled Substance in the Fifth Degree.

First, while it appears straight forward, one must not only possess the cocaine, but must knowingly possess that cocaine and know that the weight is 500 milligrams or more. In other words, if the prosecution is unable to establish your knowledge that the weight of the drug was 500 milligrams or more, the case should be reduced (easier said than done). Again, it is not the mere knowledgeable possession, but knowledge of the weight as well. If only knowledge is established, but not weight or knowledge of that weight, then the appropriate charge is likely the misdemeanor crime of Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03) as that is the lesser "default" crime for possession of any controlled substance.

The second issue briefly mentioned above will get a brief answer. 500 milligrams is a pure weight measurement. Therefore, if you possesses 600 milligrams, 500 of those milligrams must be cocaine and not some other mixture. Another way to look at this crime is that even if you possess 525 milligrams of cocaine, if the pure cocaine is less than 500 milligrams, then NY PL 220.06(5) is not the proper charge.

Unfortunately, in the realm of drug crimes, escaping one offense may still open the door to another charge. While there are too many scenarios to discuss in one blog entry, even if you were to possess 525 milligrams, of which only 300 is pure cocaine, you may still face additional crimes. If the prosecution can establish you had the intent to sell those drugs (maybe you had a scale, baggies, etc.), you may also face the significantly more serious crime of Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony.

For further information on New York drug crimes, please follow the highlighted link and review the drug section of the New York Criminal Law Blog at Crotty Saland LLP's NewYorkCriminalLawyerBlog.Com.

Prior to starting the New York criminal defense firm, the founding members of Crotty Saland LLP served as prosecutors in the Manhattan District Attorney's Office. Jeremy Saland, one of our New York criminal defense lawyers, was also cross designated with the Office of the Special Narcotics Prosecutor on two large scale and multi-jurisdicitional narcotic investigations.

Crotty Saland LLP represents clients in all criminal matters throughout the New York City region.

Maybe you stole a couple of sheets from a physician's prescription pad and made out a completely fake prescription for drugs and medicine such as Vicodin, Oxycodone or OxyContin. Maybe you altered your doctor's legitimate prescription by increasing the dosage or amount of Xanax, Adderall or Ritalin. Regardless of how the fraudulent prescription is drafted, as long as it is in fact altered you may face the "D" felonies of Criminal Possession of a Forged Instrument in the Second Degree or Forgery in the Second Degree.

If you actually drafted, created or altered the prescription fraudulently, a likely charge you will face is Forgery in the Second Degree pursuant to New York Penal Law 170.10(5). Often times, however, the police and prosecutors do not catch the person in the act of the alteration. Instead, either a search of a vehicle, a person's clothing or even the retrieval of the forged prescription from a pharmacist will result in a charge of Criminal Possession of a Forged Instrument in the Second Degree pursuant to New York Penal Law 170.25. Regardless of which offense is charged, a conviction for these felonies is punishable by up to seven years in state prison.

The actual law is not as simple as presented above. For example, the prosecution must establish beyond a reasonable doubt that you had the intent, for example, to deceive, injure or defraud another. Moreover, as it relates to a physician or doctor's prescription in New York, there is specific language that governs both Forgery and Criminal Possession of a Forged Instrument. New York Penal Law sections 170.10(5) and indirectly 170.20 establishes that a person would be guilty of these crimes if the written instrument purports to be:

"A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law."

It is worth noting in this entry that if you are successful in obtaining the prescription medicine and you no longer have the fraudulent prescription as it is in the possession of the pharmacist, you are not "safe" from prosecution. Assuming it can be established that you possessed that prescription earlier and provided it to the pharmacist, you can still be charged with one of these crimes. Moreover, although a different crime, if you are found in possession of a medicine that is also a controlled substance, you can face narcotics related charges. While simple possession may only be a misdemeanor (Criminal Possession of a Controlled Substance in the Seventh Degree) you may be charged with other offenses including Criminal Possession of a Controlled Substance in the Second Degree, a "B" felony, in the event the prosecution can establish you had the intent to sell the drugs.

This brief blog entry should make it overwhelmingly clear that accusations involving prescription drug abuse, prescription fraud and possession of controlled substance are all serious offenses in New York. While you may have a strong defense to these crimes that need to be vetted with your counsel, the road ahead will certainly be trying.

For further information on the crimes of New York Forgery, New York Criminal Possession of a Forged Instrument and New York Criminal Possession of a Controlled Substance, please follow the highlighted links.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland LLP represent the accused throughout the New York City region.

Whether you are issued a Desk Appearance Ticket (DAT) or you have been arrested in Manhattan, Brooklyn or anywhere else in New York, if you possess a controlled substance you may be charged with New York Penal Law section 220.03. This offense, Criminal Possession of a Controlled Substance in the 7th Degree, is an "A" misdemeanor punishable by up to one year in jail and applies to such drugs as cocaine, crack-cocaine, heroin, extacy, oxycodone, etc. Make no mistake. If convicted of NY PL 220.03, you will have a criminal record that will not just go away. Even a plea to a Disorderly Conduct (NY PL 240.20 - a common offer in misdemeanor drug cases) can have real life ramifications years down the road.

Criminal Possession of a Controlled Substance in the Seventh Degree, NY PL 220.03, is defined as follows:

A person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he knowingly and unlawfully possesses a controlled substance.

Although the above definition is very basic, two things should be clear. First, it is important to note that this charge does not apply to marijuana related offenses. Second, there is no mention of a particular quantity or amount of the controlled substance that is needed to establish a violation of NY PL 220.03. The reason why the statute leaves out any threshold amount is because quantity does not have any relevance on this particular charge as long as there is enough to establish the actual presence of the drug in question.

The Court of Appeals, New York's highest court, has found that an unusable amount of cocaine residue sufficiently establishes this crime. People v. Mizell, 72 N.Y.2d 651 (1988). In fact, the Court of Appeals, referencing earlier and lower court decisions, stated that "[s]o long as the quantity is sufficient to permit proper identification as a controlled substance, amount is immaterial." To be clear...if the prosecution can test and find the presence of the controlled substance it is irrelevant that it was "merely" residue that you could no longer use or sell.

Although the amount is immaterial as to the charge of NY PL 220.03, if the prosecution can establish that the weight of the controlled substance was 500 mg, an eighth of an ounce or even greater, felony charges may be brought. Moreover, if the People can establish you had the intent to sell the controlled substance a felony offense may be charged as well. Obviously, these charges have much more significant ramifications such as terms of incarceration in state prison.

For further information on drug crimes and criminal defense, please review our earlier articles relating to constructive possession (when possession of drugs is not physical) and whether prosecutors need to provide a laboratory analysis at your arraignment for drug charges.

Founded by two former Manhattan prosecutors, Crotty Saland, LLP is a criminal defense firm representing clients throughout the New York City region.

Although the Rockefeller Drug Laws have certainly eased over the years, New York Criminal defense attorneys and their clients must have a working knowledge as to the law involving legal presumptions and Criminal Possession of a Controlled Substance. While often times the police allegedly observe a sale or the actual possession, New York's Penal Law permits certain presumptions that the accused possessed the drugs in question. These presumptions are narrowly construed, but may be applicable in your case depending on the facts and circumstances. Whether the drug is cocaine, heroin or crack, the following presumptions apply:

220.25 Criminal Possession of a Controlled Substance; Presumption:

1. The presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.

The above drug presumption is often referred to as the "Automobile Presumption." Whether there is a small amount for "personal use" or kilos of cocaine, the presumption is the same. If the drugs are in "open view," for example, there is a presumption under the law that everyone possessed it. Even if the drugs are not in "open view," the presumption can still apply. There are a few exceptions to this rule. A driver for hire (a livery cab or yellow cab driver) would not fall into this presumption. Another exception would take place where an individual possessed the drugs on his or person. Where the drugs are concealed on that person, the presumption would not apply to others in the vehicle. What is equally important is that the "Automobile Presumption" does not apply to marijuana. In fact, marijuana is expressly not subject to this presumption. People v. Dan, 55 A.D.3d 1042 (3 Dept. 2008).

The second presumption, found under NY Penal Law 220.25(2) is as follows:

2. The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found; except that such presumption does not apply to any such persons if (a) one of them, having obtained such controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (b) one of them has such controlled substance upon his person.

This second presumption applies not only to controlled substances and narcotics such as cocaine or heroin, but expressly applies to marijuana as well. Moreover, as noted in the language of the statute, the substance must be in "open view" and the defendants must be in "close proximity" to the contraband in question. Although "close proximity" need not be the same room, location of drugs in an adjacent room where a defendant is not located may not satisfy this "close proximity" requirement. People v. Davis, 195 Misc.2d 858 (Rochester Cty Ct. 2003); People v. Caban, 90 Misc.2d 43 (Kings County 1977). Lastly, evidence and facts must establish that the defendants had an intent to sell. Merely displaying drugs without the intent to sell is not enough. People v. Uribe, 113 Misc.2d 207 (New York County 1982).

The above analysis of drug possession presumptions under article 220 of the New York Penal Law is a brief one. There are countless cases addressing and defining the definitions and meanings in the statutes. Although a good starting point, if you are charged under the presumption theory, you should consult with an experienced criminal defense attorney in New York to ascertain how, if at all, these presumptions impact your case.

Crotty Saland, LLP is a criminal defense firm representing clients in New York City and the metropolitan region. Crotty Saland, LLP was founded by two former Manhattan prosecutors.

Follow us on Twitter at DefenseLawyerNY.

A crime that has been on the rise as of late is the offense of Criminal Diversion of Prescription Medication pursuant to Article 178 of the New York Penal Law. While street level dealers are often involved in this crime, Criminal Diversion of Prescription Medication can arguably be viewed as the "white collar" crime of the narcotics world. Recently, in a case pending in Manhattan Supreme Court, a judge addressed the issue regarding the means by which the prosecution must establish the presence of a particular prescription medication. The question raised was whether or not it is sufficient to establish that a particular substance is a prescription medication if that fact is established solely by the statements of the accused and without further corroboration. In other words, has the prosecution met its burden by using the statements of a "seller" who says the drugs are a particular prescription medication without expert testimony or a laboratory report?

According to Judge Marcy Kahn, in People v. Khan, 3299/2008:

"'[I]n a drug-related prosecution, the People's case is legally sufficient if the evidence provides a 'reliable basis' for inferring the presence' of the drug. (People v. Swamp, 84 NY2d 725, 730 [1995], citing People v. Kenny, 30 NY2d 154, 157 [1972]). Expert testimony is sufficient, but not necessary, for this purpose. "More than conclusory assertions" are required, however, to meet the legal sufficiency standard. (Id., [additional citation omitted]). That said, the substance itself need not be produced at trial (People v. Czarnowski, 268 AD2d 701, 702 [3d Dept. 2000]), nor need it necessarily have been subjected to laboratory analysis, the results of which are introduced at trial. (People v. Houston, 72 AD2d 369, 379 [2d Dept. 1980]). The nature of the drug may be proved circumstantially (id.), and where the substance is not available for analysis, consumers who are familiar with the substance, from their own actual use of the drug, or from observation or study, may be competent to give testimony identifying it. (People v. Lynch, 85 AD2d 126, 128 [4th Dept. 1982]; see People v. Christopher, 161 AD2d 896 [3d Dept.], lv. denied, 76 NY2d 786 [1990]). 'The test…in situations where the illegal substance is not available for analysis, is the experience of the witness and the nature of [his or her] qualifications to identify the substance at issue.' (People v. Lynch, supra, 85 AD2d at 128). Where purchasers of prescription medication merely offer conclusory statements as to the nature of the drug, the evidence is insufficient to establish its identity. (People v. O'Neill, 285 AD2d 669 [3d Dept. 2001]). While a pharmacist may offer expert testimony identifying a drug by its physical appearance, based upon his or her training and experience (People v. Czarnowski, supra), the prosecution's reliance solely on identifying statements made by a defendant is insufficient to prove the nature of the drug, absent corroborating evidence. (People v. Ross, 12 Misc.3d 755, 760 [Crim. Ct. Kings Co. 2006] [citing CPL §60.50]).

Judge Kahn's assessment of the necessary requirements for corroboration are clear. A layperson alone can not establish the nature of the narcotic or prescription medication especially if belief is an unsupported conclusion. The basis of that conclusion, supporting testimony, laboratory tests, expert analysis or other elements are necessary for corroboration.

Crotty Saland, LLP is a New York criminal defense firm founded by two form Manhattan prosecutors. We can be followed on Twitter at DefenseLawyerNY.

According to New York Penal Law §215.40(2), a person is guilty of Tampering with Physical Evidence when "[b]elieving that certain evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person." New York criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland, LLP, can tell you that this crime is often charged as Attempted Tampering with Physical Evidence in an all too common scenario played out on the streets of New York City when a person discards contraband (marijuana, cocaine, heroin or even a weapon such as a knife or gun) after being confronted by the police. The question that exists in these cases is must the complaint charging the individual establish the officer's knowledge as to what the evidence is as well as the basis of that knowledge?

In a decision rendered on July 8, 2009 in Manhattan Criminal, People v. Anthony Estrada, 2009NY005091, a man was alleged to have thrown marijuana leaves up into the air as the police attempted to arrest him. As a result, the the officer was unable to recover the alleged contraband. In dismissing the complaint, the court found, among other things, that the officer did not establish that the substance in question was marijuana.

A full review of the court's decision after the jump...

Continue reading "Attempted Tampering with Physical Evidence (New York Penal Law §110.00/215.40): Does the Complaint Need To Establish the Existence of the Contraband?" »

After the Court of Appeal's recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the "policy" that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant's constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys at Crotty Saland, LLP believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

In People v. Pernell Nunn, docket number 2009KN030910, decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether "the exercise of the court's discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant's constitutional right to due process?"

The answer and the case after the jump...

Continue reading "NY Penal Law 220.03, 221.10 and 221.40: Is a Laboratory Analysis or a Field Test Needed to Convert a Drug Complaint at Arraignment?" »

NY Criminal defense attorneys are confronted regularly with the reality that possessing or selling "drugs" can mean vastly different things depending on the substance. The disparity between possessing and selling marijuana and controlled substances such as cocaine, crack and heroin is enormous even though the NYS legislature recently eased the Rockefeller Drug Laws. Clearly, and arguably correctly, the legislature has deemed Criminal Possession or Criminal Sale of Marijuana ("Marihuana" in the statute), pursuant to NY Penal Law sections 221.10 and 221.40, as less dangerous or harmful to public safety than Criminal Sale of a Controlled Substance pursuant to NY Penal Law 220.39 and 220.44.

A great example of this disparity is illustrated in the following scenario. If you are arrested and a small bag of marijuana clearly for personal use is recovered from your pant pocket, you will like face the charge of Unlawful Possession of Marijuna. Baring the amount of marijuana exceeding twenty five grams, a charge of Unlawful Possession of Marijuana is a violation and not a crime. While it is possible to be sentenced up to fifteen days in jail, if it is your first offense you are eligible to receive a Marijuana ACD. If that is the disposition, then in one year the case would be dismissed and sealed assuming you did not get into any further trouble. In the alternative, even if you were convicted of the Unlawful Possession of Marijuana, you would not have a criminal record as a result.

On the other end of the spectrum, if the substance found in your pocket was one tin of heroin or a baggie of cocaine or crack - or even a stem/pipe with residue - you would face the charge of Criminal Possession of a Controlled Substance in the Seventh Degree pursuant to NY Penal Law 220.03. A conviction for this offense would not only result in a misdemeanor, but is punishable by up to one year in jail.

Following each of the statutes into the arena of larger quantities, if you were to possess in excess of ten pounds of marijuana you would face a maximum of fifteen years in state prison. However, the offense, Criminal Possession of Marijuana in the First Degree, does not have a mandatory minimum sentence. Therefore, a judge could, if he or she wished, even sentence you to probation. If you possessed the same quantity of cocaine the crime would be the "A" felony offense of Criminal Possession of a Controlled Substance in the First Degree. Even if you were a first time offender, the minimum sentence you would face would be eight years and the maximum term of imprisonment would be twenty years.

I could list the disparities and the differences between charges involving marijuana and controlled substances in entry after entry. But the point is clear. While possessing or selling marijuana is a serious offense, the same or similar actions involving other drugs is significantly more severe. If you find yourself or a loved one accused of perpetrating such crimes, the best way to avoid compounding a dangerous situation is retaining experienced criminal counsel to guide you through the process and implement the strongest defense available.

In New York State and New York City, you can be arrested, indicted and convicted for Criminal Possession of a Controlled Substance (drugs such as cocaine and heroin), Criminal Possession of a Weapon (firearms, guns, pistols and certain knives) as well as other charges even if you physically do not possess the contraband. At its simplest level, you need not possess in your hands or anywhere on your person the gun, drugs, etc. Under New York law, your possession may be "constructive."

In People v. Lawrence Johnson, 2008NY091609, decided May 26, 2009, a New York County (Manhattan) Criminal Court issued a decision directly dealing with the legal concept of "constructive possession." In that matter, the defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law §220.03), Criminally Using Drug Paraphernalia in the Second Degree (PL §220.50[2]) and Unlawful Possession of Marihuana (PL§221.05).

Briefly, after the police executed a search warrant in an apartment, the officers recovered plates with razors, each of which had cocaine residue. Additionally, the officers recovered numerous clear empty plastic bags which they alleged were "consistent with that of packaging narcotics for sale" from the bedroom where the defendant and the co-defendant were when they were arrested. Finally, the officers recovered a scale and two large bags of marijuana as well as eighteen smaller bags of marijuana from the living room. The defendant challenged the accusations against him by arguing that he was not in possession of the narcotics and contraband recovered.

The court determined the following:

Continue reading "NY Drug Possession and Your Criminal Defense: Legal Possession of Drugs without Physical Possession " »

NY criminal defense attorney's know that prosecutors and judges take drug crimes very seriously even if the legislature recently relaxed the Rockefeller drug laws relating to narcotics. New York Criminal defense lawyers often have a daunting task before them when battling to defend their clients. In fact, a recent judicial decision corroborates this. Published in the New York Law Journal on Friday, a judge in a Manhattan criminal court case held that "where the charge is an 'attempt' to divert a prescription medication, the People need not provide a lab confirming that the drug recovered was in fact a prescription medication." In "normal" words, if you are charged with Attempted Criminal Diversion of a Prescription Medication, the "prescription medication" you are alleged to have sold could in fact be sugar tablets and the crime would still stand.

For background purposes and as outlined in People v. Christophe Polanco, 2008NY077882 (decided on March 16, 2009), a person is guilty of Criminal Diversion of Prescription Medications in the Third Degree when he "commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars." (PL §178.15[1]). A criminal diversion act is "an act or acts in which a person knowingly: [a] transfers or delivers, in exchange for anything of a pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it" (PL §178.00[3]). Prescription medication means any medication "for which a prescription is required in order to be lawfully sold, delivered or distributed by any person authorized by law to engage in the practice of the profession of pharmacy" (PL §178.00[1]). A person is guilty of an attempt when, with intent to commit the crime, "he engages in conduct which tends to effect the commission of such crime" (PL §110.00).

Generally, to survive a motion to dismiss for facial insufficiency, a misdemeanor complaint usually must contain a field test or lab report establishing that the particular narcotic alleged in the complaint is in fact that narcotic. However, in Polanco, the court noted:

"[T]he complaint charges an attempt to exchange two sealed 300 mg bottles of Reyataz for $2,408. The supporting deposition of the Supervising Pharmacist confirms that Reyataz is a prescription medication, and that the value of a 300 mg bottle is in excess of $1000. These allegations do provide reasonable cause to believe that the defendant attempted to commit criminal diversion of prescription medication in the third degree (compare People v. Ross, 12 Misc.3d 755 [Crim Ct, Kings County 2006] [dismissing complaint alleging criminal diversion of prescription medications in the fourth degree where the People failed to convert the complaint by either a lab report or non-hearsay allegations that the substance recovered was a prescription medication]). Whether the pills in the bottle were in fact a prescription medication is not an element of the offense charged (see People v. Sessions, 181 A.D.2d 842 [2nd Dept 1992] lv denied 80 N.Y.2d 837 [1992] [crime of attempted criminal sale of a controlled substance is committed when the defendant sells a lawful substance mistakenly believing it to be crack cocaine]). Defendant's motion to dismiss the counts of criminal diversion of prescription medications in the third degree for facial insufficiency is denied."

It is important to recognize that this decision, while persuasive in other courts, is not a controlling appellate decision. However, the court's thinking was quite clear and convincing. When charged with attempting to sell a prescription drug, it does not matter if the drug was in fact a prescription drug. It would only matter if you were charged with actually selling the prescription drug. In the event you were charged with the actual and completed sale of a prescription drug, then the prosecution would be required to prove or establish the additional element.

Do not forget, however, that even if the complaint is facially sufficient as to one particular charge or even the only charge alleged, there may be other ways to successfully challenge your case. The criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have the experience and command of the law that enables us to identify these potential issues and exploit them for your benefit.

NY criminal defense attorneys and their clients should take notice. Recently, New York County (Manhattan) Criminal Court Judge Elisa S. Koenderman rendered a decision in People v. Carlos Rivera, 2008NY031540, finding that it is not sufficient to support a charge of Criminally Using Drug Paraphernalia in the Second Degree (Penal Law §220.50[2]) where the drug in question is marijuana. In other words, the criminal intent must relate to narcotics or stimulants. Marijuana is neither type of contraband. Although the decision is applicable only in the realm of the charge of Criminally Using Drug Paraphernalia, this decision is one that experienced New York criminal defense attorneys and criminal defense law firms, such as the former Manhattan prosecutors of Crotty Saland, LLP, should add to their arsenal.

In the instant matter, the complaint alleged that the police arrested the defendant after they found one plastic bag containing marihuana, a scale and over fifty small ziplock bags in his apartment. Additionally, the defendant admitted the contraband was his.

The criminal defense attorney argued the complaint was facially insufficient to support the charge of Criminally Using Drug Paraphernalia because marihuana, not a narcotic drug, was the only “drug” seized. Furthermore, the criminal defense attorney asserted that the scale, bags and possession of material suitable to and intended for use in the packaging of marihuana cannot be considered drug paraphernalia. The defendant’s counsel also claimed that according to Penal Law §220.50(2), criminally using drug paraphernalia requires the knowing possession of "any material suitable for the packaging of . . . narcotic drugs or stimulants under circumstances evincing an intent to use . . . the same for the purpose of unlawfully manufacturing, packaging or dispensing . . . any narcotic drug or stimulant." Lastly, both the Penal Law and Public Health Law specifically define marihuana and differentiate it from narcotic drugs and stimulants.

Agreeing with the defendant, the court noted that §220.50(2) “is only applicable when the circumstances evince an intent to participate in the illegal distribution of narcotic drugs or stimulants is persuasive.” Moreover, the court found that “it is clear that Penal Law §220.50(2) only applies to circumstances evincing criminal intent regarding narcotic drugs or stimulants, and not to similar circumstances regarding marihuana.” Going even further, the court recognized that the “Legislature…made even more clear by the very structure of the Penal Law as a whole…that Article 220 deals with all controlled substances offenses, whereas marihuana offenses are addressed by an entirely separate article, Article 221.” In dismissing the complaint, the court refused to expand the reach and parameters of Penal Law §220.50(2) by defining marihuana as a narcotic drug. At bottom, regardless of whether or not the scale and bags were used for the packaging of marijuana, marijuana is not a narcotic and may not be a basis for the charges relating to drug paraphernalia.

In the event you find yourself involved in any crime or offense associated with marijuana, narcotics or drugs, contact Crotty Saland, LLP, so that a plan tailored specifically to your needs can by developed and implanted to protect your rights, freedom and integrity.

Just about every day in the NYC newspapers we read about someone being arrested for selling drugs such as cocaine, crack, heroin or marijuana. While the sale of drugs in NY can be a serious felony (marijuana sale is usually a misdemeanor in most situations) requiring mandatory prison, NY criminal defense attorneys often defend clients allegedly selling other controlled substances as well. In fact, the Brooklyn District Attorneys Office announced the indictment yesterday of Dr. Richard Lucente, a physician, for allegedly selling prescriptions for steroids. That's right...Dr. Lucente is indicted for selling the prescription for a controlled substance and not the actual drug. While not as common of a charge as Criminal Sale of a Controlled substance, Dr. Lucente is indicted for Criminal Sale of a Prescription for a Controlled Substance. According to the Brooklyn District Attorney's Office, "Lucente is charged with providing patients with prescriptions for steroids and human growth hormones, for a fee, when those patients had no medical need for the drugs." Prosecutors further allege that Lucente would steer patients to Lowen’s Drug Store in Bay Ridge. In exchange for directing business to the pharmacy, Lowen's Drug Store paid Lucente nearly $30,000 in kickback over a two to three year period.

Under New York criminal law, a person is guilty of Criminal Sale of a Prescription for a Controlled Substance when, being a practitioner, that person knowingly and unlawfully sells a prescription for a controlled substance. In simple terms, a person is guilty of Criminal Sale of a Prescription for a Controlled Substance if they are a doctor, or similar professional, and they knowingly sell a prescription not merely for any medicine, but for a controlled substance such as steroids.

While prosecutors, Dr. Lucente and his criminal defense attorney are the only ones that know where this particular case will go, one thing is certain. Law enforcement is not only going to pursue the drug trade in the streets. Whether drugs or the means to obtain them are being sold and traded in a Park Avenue suite, a physician's office, or somewhere in Harlem, law enforcement presence is not going away anytime soon. If you believe you are a target of a drug investigation or any criminal investigation, contact the criminal defense attorneys and former prosecutors at Crotty Saland, LLP.

Working as a NY criminal defense attorney and as a prosecutor has allowed me to examine and analyze cases from all sides including drug crimes relating to drug sales and possession. As a prosecutor in the Manhattan District Attorney's Office I was cross designated multiple times with the Office of the Special Narcotics Prosecutor to investigate drug organizations where cocaine, crack, and heroin were all sold by crews throughout New York City. As a NY criminal defense attorney, I have represented clients in narcotics and drug cases who are accused of being the target of an investigation where they allegedly sold drugs to an undercover police officer. Depending on the weight or the amount of the narcotic sold, these individuals faced charges related to either Criminal Sale of a Controlled Substance or Criminal Possession of a Controlled Substance.

The investigations I was involved in as an assistant district attorney are not going away anytime soon. In fact, Manhattan prosecutors announced a "take down" yesterday of the "Stack Money Family" that allegedly had a drug operation in the vicinity of 143rd Street. Fifteen alleged members and associates of this organization were arrested and charged with Criminal Possession of a Controlled Substance, Criminal Sale of a Controlled Substance and Conspiracy after the police executed nine search warrants Wednesday morning. According to the Manhattan District Attorney's Office press release, the crew was run by a man who was incarcerated at Rikers Island.

Since November 2007, police have been investigating the "Stack Money Family" whom prosecutors say are associated with the "Bloods" and more directly with the "Mack Baller Brims” or “Mayback Baller Brims.” "Operation Smokestack," as it is referred to by law enforcement, not only utilized undercover officers, but surveillance techniques to make the drug purchases, identify targets, and locate stash houses.

While an arrest and an indictment is not evidence of guilt, it is likely that the prosecutors involved in this case have substantial evidence due to the scope and length of the investigation. Certainly, the members and associates of the "Stack Money Family" have a long road ahead of them. That being said, no matter the evidence, there are often challenges that should be mounted to make sure that the evidence was obtained legally and the rights of the accused have not been violated. After all, quantity and quality are not the same. A skilled criminal defense attorney may be able to identify a weakness or an error in the prosecution's case or even expose a procedural or legal issue that was not properly followed by law enforcement. Whatever the situation may be, the prosecution always has the burden to prove their case beyond a reasonable doubt and a defendant has the right to make sure the prosecution does so.

The NY criminal defense attorneys and founding partners of Crotty & Saland, LLP, have handled countless cases involving narcotics and drugs as both Manhattan prosecutors and as criminal defense attorneys. In the area of Criminal Possession of a Controlled Substance and Criminally Using Drug Paraphernalia, Crotty & Saland, LLP knows that prosecutors can charge you for either possessing the drugs and paraphernalia or they can charge you for constructively possessing that contraband. In other words, while the drugs may not have been in your pocket, in some capacity law enforcement has alleged that you exhibited dominion or control over the contraband.

Recently, on October 30, 2008, New York (Manhattan) County Criminal Court Judge Elisa S. Koenderman in People v. Anthony Lebron, 2008NY032832, dismissed a complaint charging the above offenses because the complaint was facially insufficient. In that matter, the police arrested Mr. Lebron after they recovered eighteen ziplock bags containing crack/cocaine residue from a bedroom in "the defendant's apartment." Additionally, according to the Court's decision and review of the complaint against Mr. Lebron, "three large ziplock bags containing numerous small pink ziplock bags, four large ziplock bags containing numerous small clear ziplock bags, a scale, a glass pyrex measuring cup, and a white cup, all allegedly intended for use in the packaging and dispensing of narcotic drugs, were also recovered from 'the defendant's apartment.'"

Upon reviewing the complaint, the defendant's attorney challenged the sufficiency of the complaint because the prosecution failed to use non-hearsay allegations that the apartment was the defendant's. In other words, merely stating that the apartment was the defendant's apartment was a conclusion unsupported by non-hearsay evidence.

In agreeing with defendant's counsel and dismissing the complaint for facial insufficiency, the Court stated that:

The "officer's statement that the apartment was 'the defendant's' is completely conclusory (see People v. Dumas, 68 NY2d 729, 730 [1986]; People v. Rosado, 192 Misc2d 184, 186 [Crim Ct, NY County 2002]. Without evidentiary facts to demonstrate that the defendant exercised dominion and control over the premises, the sole allegation that the items were recovered from "the defendant's apartment" is insufficient to provide reasonable cause to believe that the defendant knowingly possessed the alleged crack/cocaine and drug paraphernalia recovered from the apartment in this case."

The Court further recognized that:

"In order to support a charge that the defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion and control over the property by demonstrating that he had a sufficient level of control over the area in which the contraband was found or over the person from whom it was seized (see People v. Manini, 79 NY2d 561, 573 [1992]). Constructive possession is established where the defendant has been found in proximity to contraband recovered from premises under the defendant's control (see People v. Tirado, 47 AD2d 193 [1st Dept 1975])."

While the Court listed some examples that would help establish constructive possession, it is important that your criminal defense attorney review and analyze the charges against you as alleged in the complaint. In such a case, if the prosecution fails to set for some evidence such as whether you provided the apartment as a home address to city agencies, you possessed a key, or you made an admission indicating it was your apartment, your criminal defense attorney should seek to have the case dismissed. Although the elements listed above are not an exhaustive list, a trained legal eye is necessary to make sure that charges are legally sufficient and the prosecution is held to their burden. In doing so, Crotty & Saland, LLP, will aggressively set forth the strongest legal argument to protect your rights, freedom, and liberty.

One of the more common crimes NY criminal attorneys deal with is Criminal Possession of Marihuana / Marijuana in the 5th Degree, a class "B" misdemeanor pursuant to NY Penal Law Section 221.10(1). A person is guilty of this charge if he or she "knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view."

Although the charge seems straightforward, if you possess a "blunt," "joint," or burning marijuana in public you are potentially guilty of this offense. However, before you throw your hands up in the air and plead guilty to this crime, you should consult with a knowledgeable New York criminal defense lawyer who can analyze elements of your case that you may have overlooked.

One of those elements that is critical is whether or not the marijuana was in a public place. If it was not, then your case may be dismissed. According to Section 240.00 of the Penal Law, a public place is defined as "a place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence."

Unlike matters of public lewdness where "public place" has a more narrow definition tailored for that specific crime, "public place" in connection with Criminal Possession of Marihuana has a much more broad meaning. See People v. Guzman, 6 Misc 3d 553 (Crim Ct, NY County 2004). In fact, Justice Elisa S. Koenderman of the New York County (Manhattan) Criminal Court issued a decision on July 10,2008 in People v. Ronnie Watkins where she recognized the broad view the courts accept in connection with the possession of marijuana in a "public place." In her decision to deny dismissal of a criminal court complaint for facial insufficiency where the defendant's counsel argued that the inside of the defendant's vehicle was not a "public place," Justice Koenderman stated that:

"[the] application of the broad definition of public place to Criminal Possession of Marijuana in the Fifth Degree is consistent with the legislative intent of the statute. Unlike the narrower definition applicable to public lewdness, the "broad definition" of public place under PL §240.00 (1) encompasses the interior of a car parked on a street to which the public has access, regardless of whether the objective circumstances establish that the interior can, and likely would, be seen to the casual passerby."

Furthermore, Justice Koenderman recognized that the essence of a "public place" is that it is possible that a member if the public may pass by it. See People v. McNamara 78 NY2d 626, 633 (1991). As a result, all that is required for the interior of car to constitute a public place as an element of Criminal Possession of Marihuana in the Fifth Degree is mere public access to the street where it is parked.

Although it is clear that "public place" is likely to be construed to include areas where you might think are private locations such as the inside of a vehicle, the marijuana must also be burning for your possession to constitute the misdemeanor charge of Criminal Possession of Marijuana in the 5th Degree. If the prosecution fails to set forth one or both elements, the "public place" and the burning, your NY criminal attorney should file a motion to have the complaint against you dismissed.

It is no surprise to this former Manhattan prosecutor and current criminal defense attorney that the Manhattan District Attorney's Office obtained a top count plea for Criminal Possession of a Controlled Substance in the First Degree and a severe sentence for the infamous Robert Chambers, a/k/a, the "Preppie Killer." The notorious criminal is known for killing Jennifer Levin years ago in Manhattan's Central Park.

Prior to his arrest, Mr. Chambers had been the target of an undercover police investigation where he ultimately sold a quantity of cocaine in excess of two ounces. Under New York State law, the sale of a controlled substance (cocaine, "crack," heroin and other drugs) is punishable as felony regardless of how small or large the amount sold. One is guilty of Criminal Sale of a Controlled Substance in the First Degree (Penal Law Section 220.43) if he or she knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing a narcotic drug ad the preparations, compounds, mixtures or substances are of an aggregate weigh of two ounces or more. Under this offense it does not matter whether the amount barely exceeds two ounces or is multiple kilos.

The potential punishment for Criminal Sale of a Controlled Substance in the First Degree depends on many factors including whether the current offense is the defendant's first. Alternatively, if the defendant is a predicate felon or a violent predicate felon the sentence may be significantly enhanced. At a minimum, the potential sentence is eight years and up to twenty years, but may be much greater.

In the case of Mr. Chambers, not only did he have a terrible criminal history that no doubt had an impact on the prosecution's recommendation and the court's ultimate sentence, but Mr. Chambers faced a harsh sentence as a matter of law. As a violent predicate felon relating to Mr. Chamber's prior offense for Manslaughter in the First Degree, Mr. Chambers faced a minimum of fifteen years and a maximum of thirty years in state prison.

*** For further information regarding an arrest or issuance of a Desk Appearance Ticket for Criminal Possession of a Controlled Substance in the 7th Degree (NY Penal Law 220.03), and your criminal defense, please review the articles on drug quantity, constructive possession of drugs and the necessity of a laboratory analysis by law enforcement***

New York State has multiple degrees of drug possession offenses when an individual is accused of possessing a controlled substance. Mere possession in New York, whether it is in Manhattan, White Plains, Brooklyn or the Bronx, is at least a misdemeanor regardless of your purpose of having the drugs. In other words, having any amount of crack, heroin, cocaine, or other drugs, is punishable a by up to one year in jail even if you possessed it for personal use. Depending on the weight of the drugs and your intent, the crime can be prosecuted as Criminal Possession of a Controlled Substance in the First Degree punishable by a significant term of imprisonment. For the purposes of this entry, we will discuss only Penal Law Section 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree.

From my reading of the articles dealing with Ms. O'Neal's arrest, it appears that she is a drug user and not a seller of cocaine or crack-cocaine. Therefore, Ms. O'Neal was charged with Criminal Possession of a Controlled Substance in the Seventh Degree. There is no specific amount of drugs that dictates whether the drugs possessed are for personal use or for sale, but one of the factors that the police and prosecutors examine when determining what to charge is a combination of the amount as well as the packaging and the amount and denomination of money an individual possesses.

As explained, possession alone may be punished by up to one year in jail, but that term of incarceration is not likely unless you have a significant criminal history. What is more likely is either a term of probation, a lesser term of jail or community service. However, if you are someone who requires certain certifications in your job, such as a teacher, physician, or attorney, just a conviction for this offense with nothing more can be devastating to your career and livelihood.

Crotty Saland, LLP is criminal defense firm representing clients throughout New York City. Crotty Saland, LLP was founded by two former Manhattan prosecutors.

Follow Crotty Saland, LLP on Twitter at DefenseLawyerNY.

If you have the misfortune of being accused in New York of any degree of the crime of Criminal Diversion of Prescription Medications and Prescriptions, it is imperative that you retain an attorney experienced in handling fraud related to prescription medications. As a skilled defense attorney and former prosecutor with the Manhattan District Attorney’s Office under Robert Morgenthau, I am able to aggressively challenge a prosecutor’s evidence to get the best disposition possible.

Whether you are charged with Criminal Diversion of Prescription Medications and Prescriptions in the First Degree, punishable by up to 15 years in prison, or the lowest offense of Criminal Diversion of Prescription Medications and Prescriptions in the Fourth Degree, punishable by up to one year in city or county jail, a skilled attorney will advise you of your potential defenses in order to try to beat the case or get you the best deal while maintaining your livelihood and integrity.

While the dollar amount of the benefit exchanged during the criminal diversion directly impacts the level of the crime, i.e., the more money involved in the transaction the more serious the offense, the cases hinge on whether there was a “criminal diversion act.”

In order to prove such an offense, the prosecution must prove that you transferred, delivered or received for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to believe that the recipient, seller, or transferor has no medical need for it or is not authorized by law to transfer or sell it. Another way prosecutors establish a “criminal diversion act” is to establish merely that you transferred or received a prescription in exchange for something of pecuniary value.

Although this sweeping definition may intimidate an inexperienced attorney, there are many ‘built in” defenses to these charges right in New York State Penal Law. Specifically, the provisions of this statute do not apply to licensed physicians or other professionals. Moreover, a pharmacist acting in “good faith” is not subject to this offense or a person acting in “good faith” seeking treatment or assisting an individual seeking treatment.

These provisions in the statute are an experienced defense attorney’s sword to protect you from an overzealous prosecutor. “Good faith” is not black or white, but a skilled defense attorney may be able to stop the snowballing of allegations or an indictment by confronting the prosecutor with prior cases defining “good faith” and by respectfully explaining how you in fact were acting in “good faith.”