Tilem & Campbell just obtained a summary of the new Legislation repealing the Rockefeller Drug laws. If you or a loved one is currently serving a term in prison for a New York Narcotics case or is currently charged with any New York Drug case. Contact one of the experienced criminal attorneys at www.888anycrime.com
New York criminal defense lawyers, especially those that handle New York State drug cases, are monitoring an agreement just announced between the New York Senate, Assembly and Governor to repeal the Rockefeller Drug Laws. Details are not fully available but the legislation is expected to substantially reduce and in some cases eliminate mandatory minimums for New York Drug cases, give judges options of treatment instead of sentences of incarceration and give judges the ability to dismiss all charges and seal the arrest records of offenders who complete drug treatment.
While the bill, once passed is likely to have far reaching effects on New York drug cases, the legislation will not have any effect on the draconian, federal mandatory minimums that Tilem & Campbell is currently challenging in Federal Court. The bill will likely provide some relief to the many people serving lengthy state sentences under the old law.
The laws have not been passed yet but with agreement by all the major players, the bills should be passed quickly and will likely take effect soon. Tilem & Campbell will continue to monitor this important legislation and pass on updates as the become available. If you have any questions contact us at 888-ANY-CRIME or visit us on the web at 888anycrime.com
New York Prostitution lawyers are watching a development reported in today's New York Post which reflects a steep decrease in enforcement of prostitution and other vice offenses by the NYPD. The Post is reporting that the NYPD shut down its enforcement of Prostitution on craigslist as long as 3 years ago. The Post is also reporting that other vice operations have been shut down or slowed down because of increased oversight.
Craigslist has a large number of ads catering to adult entertainment. Many of the craigslist ads are for escorts. Escorts are women (or men) who agree to spend time with a person for a fee. While this practice is legal if sex is exchanged it can violate state or federal prostitution laws.
Criminal lawyers John Campbell and Peter Tilem operate a website escortattorney.com which caters to the escort industry and represents, customers, escorts and escort agencies. Tilem & Campbell will continue to monitor these developments as they have a substantial impact on many Tilem & Campbell client's
Tilem & Campbell is fortunate to have former Firearms Trafficking prosecutor Peter H. Tilem as its Senior Partner able to advise clients on all aspects of New York gun possession. Under New York law, the severity of a Criminal Possession of a Weapon charge dealing with a firearm can hinge on whether the firearm was loaded or not. For example, one may be charged with Criminal Possession of a Weapon (CPW) in the Fourth Degree for simply possessing a firearm [See PL 265.01(1)]. Criminal Possession of a Weapon in the Fourth Degree does not require that the firearm be loaded. Therefore, one is guilty of CPW 4th if they simply possess an unloaded firearm without proper licensing. Criminal Possession of a Weapon in the 4th degree is an “A” misdemeanor that carries up to one year in jail.
However, if one possess a loaded firearm outside their home or business, the charge is CPW 2nd, a “C” felony which carries a mandatory minimum 3 ½ year to a maximum 15 years in state prison. [See PL 265.03(3); PL 70.02(3)(b)]. Therefore, if you possess an operable firearm outside your home or place of business, the difference between facing an “A” misdemeanor (CPW 4th) which carries up to one year in jail with no mandatory minimum (which means probation is possible) and the “C” felony (CPW 2nd) which carries a mandatory minimum of 3 ½ years in state prison has everything to do with whether the firearm was loaded.
Here’s the problem. Your unloaded gun might be considered loaded under New York law. Under the Penal Law, a “Loaded firearm” is defined as any firearm actually loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses ammunition for that firearm. [See PL 265.00(15) for the exact definition of “loaded firearm”]. Therefore, the term loaded firearm means not only a truly loaded firearm but also the contemporaneous possession of an unloaded firearm and ammunition for that firearm. Accordingly, under the law of New York State, an unloaded firearm may actually be considered a loaded firearm.
For more information or if you have been charged with any weapons offense, contact Tilem & Campbell toll-free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. For more information about New York’s gun laws, visit www.HandGunAttorney.com.
While New York Drug Laws and Many Other State’s Laws Consider Crack Cocaine and Powder Cocaine the Same Drug, Federal Drug Laws Do Not.
Currently, Tilem & Campbell has one appeal pending before the United States Court of Appeals for the Second Circuit challenging the constitutionality of the previously discussed 100:1 powder cocaine v. crack cocaine sentencing discrepancy. Tilem & Campbell has another Federal Narcotics case for which it is preparing the appeal now. Among other arguments, we have presented an Equal Protection argument centered on the unequal sentences imposed on crack offenders as compared to powder cocaine offenders.
Every day that a crack offender spends in prison beyond that which a powder cocaine offender would spend for the same quantity of drug is an unconstitutional deprivation of liberty; a fundamental right. Such sentencing discrepancies cannot survive a rational basis analysis let alone a strict scrutiny analysis.
The above-discussed “100-to-1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs.” Kimbrough v. U.S. 128 S.Ct. 558 (2007). As a result of this disparity, “a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.” Id.
Such a penal disparity bears no relation to the government’s goals and no ground can be conceived to justify them. When Congress passed the crack cocaine mandatory minimums, it believed, as did many others at the time, that crack was leading a parade of evils into a national drug-abuse epidemic.
These fears, however, proved unfounded. When the United States Sentencing Commission began to empirically research cocaine sentencing policy, it soon found, much to its dismay, that the 100:1 disparity bore little relationship to differences that actually existed between the two forms of cocaine. The data showed that the disparity significantly overstated the relative seriousness of crack offenses. As discussed in a previous blog, crack and powder cocaine are two forms of the same drug.
If you would like to discuss this issue further or have a another sentencing issue including an appeal, contact Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation or visit on the web, www.888AnyCrime.com
New York criminal defense firm Tilem & Campbell is pleased to report that after years of fierce opposition to New York's draconian "Rockefeller" drug laws, and after some amendments, passed in 2004, did away with some of the harshest sentences, it now appears that much of the remnants of the Rockefeller Drug laws are going to be repealed. Last week by a more that 2-1 margin, the New York State Assembly passed a bill which would repeal additional provisions of the Rockefeller Drug Laws and which would give Judge's greater discretion in sentencing drug-offenders to non-jail, treatment programs. These provisions can have a substantial effect on New York Drug cases.
Governor Patterson has already signaled his approval of amending the Rockefeller Drug Laws and with democrats in control of the New York State Senate, it seems that some significant change in New York State Drug laws is all but certain.
As an experienced criminal defense lawyer I have handled numerous drug cases. In addition, as a former prosecutor I have handled hundreds if not thousands of drug cases. In my vast experience, rarely do I see major traffickers getting arrested and often see low level dealers or users get sentenced to many years in prison. What I find surprising is that often then prosecutor, and judge agree that the sentence is to severe but under the law, often the judges and prosecutors are powerless to reduce the sentence.
The proposed law gives more discretion to New York State judges who are often in the best position to determine whether a person should get treatment or go to prison.
At a time when the law is changing, it is most important for people accused of drug crimes and their families to stay in touch with the latest changes in New York Drug laws. Not all lawyers stay abreast of the latest changes in the law, so stay informed. If you have any questions about any Westchester County drug cases, New York City drug cases, federal drug cases in the New York area please contact Tilem & Campbell at 888-ANY-CRIME (888-269-2746)
Crack Cocaine Mandatory Minimums: Congress, President Elect Obama, Vice President Elect Biden, Incoming Secretary of State Clinton, the Chairman of the House Judiciary Committee Rep. John Conyers, Jr Have Either Sponsored or Cosponsored Bills Abolishing
As experienced New York and Federal criminal defense lawyers, we keep track of changes and proposed changes in the law that may effect our clients. When appropriate, and as part of the effort of our effort, though this blog to educate the public, our clients and our friends, we post proposed changes in the law here, in our blog.
Congress is taking notice to the injustice associated with the previously discussed 100:1 ratio crack cocaine vs powder cocaine sentencing disparity. At least 6 Bills in 2007 and 1 in 2008 were proposed by both Democrats and Republicans that would in some way reduce or eliminate the 100:1 cocaine/cocaine base ratio. These proposed Bills include:
H.R. 5035, the Fairness in Cocaine Sentencing Act of 2008: Eliminates mandatory minimums for cocaine offenses. On January 17, Rep. Robert “Bobby” C. Scott (D-Va.), who is Chairman of the House Committed on the Judiciary Subcommittee on Crime, Terrorism and Homeland Security and also serves on the House Subcommittee on the Constitution, Civil Rights and Civil Liberties, introduced H.R. 5035, The Fairness in Cocaine Sentencing Act of 2008. The bill would, among other things, eliminate the distinction between powder cocaine and cocaine base (crack) and eliminate all mandatory cocaine sentences. This bill is the first bill introduced in the House in the 110th Congress that would eliminate mandatory minimums for crack and powder cocaine sentences.
S. 1711, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007: Sponsored by Vice-President Joseph R. Biden, Jr. (D-Del.), S. 1711 would, inter alia, eliminate sentencing differences between crack and powder cocaine in favor of a single mandatory minimum at the current powder cocaine levels and eliminate the five-year mandatory minimum for simple possession of crack cocaine. This bill is supported by President Barack Obama and Secretary of State Hillary Clinton . The direction of our incoming Administration is clear. “Obama and Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.” (See http://origin.barackobama.com/issues/civil_rights/#sentencing-disparities)
H.R. 4545, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007: Introduced on December 13 by Rep. Sheila Jackson Lee (D-Texas), H.R. 4545 is the House companion to the above-discussed S. 1711. The bill would, among other things, eliminate sentencing differences between crack and powder cocaine in favor of a single mandatory minimum at the current powder cocaine levels and eliminate the five-year mandatory minimum for simple possession of crack cocaine. The bill has 43 cosponsors:
S. 1685, the Fairness in Drug Sentencing Act of 2007: Introduced by Sen. Orrin Hatch (R-Utah), S. 1685 would reduce the difference between crack and powder sentencing by increasing the amount of crack cocaine needed to trigger the five-year mandatory minimum sentences from five to 25 grams and the 10-year mandatory minimum from 50 to 250 grams. It would also eliminate the five-year mandatory minimum for simple possession. The bill would not eliminate the cocaine sentencing disparity but reduce it from 100:1 to 20:1. The bill also directs the Sentencing Commission to review the sentencing guidelines and amend them if appropriate to account for specified aggravating and mitigating characteristics. There are three cosponsors.
S. 1383, the Drug Sentencing Reform Act of 2007: Sponsored by Sen. Jeff Sessions (R-Ala.), S. 1383 would adjust the disparity between crack and powder sentencing by raising the amounts of crack cocaine that trigger the five- and 10-year mandatory minimum sentences (from five to 20 grams and from 50 to 200 grams respectively) while also lowering the triggering quantities for powder cocaine (from 500 grams to 400 grams for the five-year mandatory minimum sentence and from five kilograms to four kilograms for the ten-year mandatory minimum). It would also lower the simple possession mandatory minimums. S. 1383 directs the Sentencing Commission to amend the guidelines by adding enhancements for a variety of aggravating factors. The bill would cap sentences at level 32 (roughly 10 years) for defendants who played a minimal role in the offense and creates a pilot program to test releasing certain nonviolent elderly prisoners. There are three cosponsors.
H.R. 79, the Powder-Crack Cocaine Penalty Equalization Act of 2007:
Introduced by Rep. Roscoe Bartlett (R-Md.), H.R. 79 would equalize the crack and powder cocaine sentences at by lowering the triggering quantities to those for crack cocaine.
H.R. 460, the Crack Cocaine Equitable Sentencing Act of 2007:
Introduced by Rep. Charles Rangel (D-N.Y.), H.R. 460 would also equalize the crack and powder penalties, but at the powder level. The bill has 20 cosponsors and has been referred to the House Judiciary Committee’s crime subcommittee.
The above discussed proposed legislation shows us that Congress is taking notice of the baseless 100:1 powder cocaine vs. crack cocaine discrepancy and is attempting to correct this injustice. All the evidence and studies show that the fears relied upon when the crack cocaine mandatory minimums were implemented never materialized, that the drugs are chemically identical and that there is no justification for the discrepancy; a discrepancy that has devastated a generation of young black males.
SENTENCING: A JUDGE MAY NOT ENHANCE A SENTENCE BASED UPON FACTS NOT ADMITTED BY THE DEFENDANT NOR FOUND BY A JURY BEYOND A REASONABLE DOUBT.
The case of Blakely v. Washington decided in 2004, significantly changed New York and Federal sentencing and substantially altered the way experienced criminal defense lawyers handled their most serious cases. It also led to the change in the once mandatory federal sentencing guidelines to a system that is now now merely advisory.
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, Ralph Blakely pleaded guilty in a Washington State Superior Court to kidnapping his estranged wife. The statutory maximum for the offense Blakely pleaded guilty to was 53 months. The sentencing judge, however, sentenced Blakely to 90 months - more than three years above the 53 month maximum - finding that Blakely acted with deliberate cruelty. Note, Blakely never admitted to acting with deliberate cruelty nor did a jury find that he did so beyond a reasonable doubt.
Blakely appealed to the Washington Court of Appeals which rejected his argument that Washington’s sentencing procedure which allowed sentence enhancements above the statutory maximum based upon judicial determinations deprived him of his federal constitutional right to have all facts legally essential to his sentence determined by a jury beyond a reasonable doubt. The Washington Supreme Court denied discretionary review. The United Supreme Court granted certiorari (agreed to hear the case) and ultimately found the Washington State sentencing procedure unconstitutional.
The issue before the United States Supreme Court was whether a state judge may consider facts, that were not admitted by the defendant nor found by a jury beyond a reasonable doubt, to enhance the defendant’s sentence beyond the maximum sentence the judge may have imposed based upon facts admitted by the defendant or found by a jury beyond a reasonable doubt.
In striking down the Washington State sentencing procedure, the United States Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. To allow otherwise would violate a defendant’s Sixth Amendment right to trial by jury. Where a defendant, such as Blakely, pleads guilty, the State may seek judicial sentence enhancements only if the defendant either stipulates to the relevant facts or consents to judicial fact-finding.
It is of critical importance to note that the statutory maximum is not necessarily the absolute maximum sentence that may be imposed but instead is the maximum sentence that may be imposed within the authorized sentencing range based upon the admitted or proven facts. In Blakely for example, Washington State argued that the challenged sentencing procedure was constitutional because a judge could never go above the statutory maximum based upon judicial findings but could only increase the sentence within the statutorily authorized range.
The Supreme Court rejected this argument noting that had Blakely been sentenced to 90 months based solely upon the admitted facts, the sentence would have been reversed even though it was less than the maximum 10 years.
If you have any questions regarding any sentencing issue, are awaiting sentencing or want to file a criminal appeal of your conviction or sentence feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.