New York Criminal Attorney Blog

As discussed in our previous blog the Greenburgh Drug Court was so out of control that Court officials eventually had to transfer all of the cases out of the Court to protect the rights of those participating in its Drug Court. As it turns out, Drug Courts in general have become controversial and several studies that have been released this year raise several areas of concern for the people convicted of drug offenses who participate in these programs. Many of the concerns raised are related to the issues that derailed the Greenburgh Drug Court.

Generally, Drug Courts are a type of problem solving Court a new breed of specialized Court that attempts to solve a community problem such as drug abuse, domestic violence or guns. In the case of Drug Courts, participants, individuals arrested for drug related or drug motivated, non-violent crimes are asked to plead guilty in return for entering the Drug Court system where a "carrot and stick" approach will be used to get the participant to deal with their addiction. Participants who are successful are rewarded with such things as applause, certificates, praise and ultimately dismissal of their charges. Participants who are not successful are punished by being required to write essays, do community service, attend extra court sessions and in some cases lengthy jail sentences.

In a series of reports issued this year and discussed in a National Association of Criminal Defense Lawyers magazine article, the efficacy of the drug court model, as well as its expense and denigration of basic constitutional principles are called into question. In the Drug Court model used most often, drug court participants are often forced to plead guilty to crimes more severe than they might without Drug Court in the hopes that they will be able to get the charges dismissed after completing the Drug court program. In this model, as a cost of entering Drug Court, broad waivers are required, contracts and releases are signed and guilty pleas are entered giving the Court the "stick" to punish those who fail.

In the Greenburgh case, by way of example, the Court wanted to sentence the participant to 1 year in jail for a shoplifting case, a sentence so disparate compared to what she would have gotten without Drug Court that it is shocking. One of the criticisms of the Drug Court model is that it leaves many people who accept drug treatment through the Drug Court worse off than if they had simply handled their case through the normal Courts.

In addition, the reports cite violations of the Sixth Amendment right to counsel, a right that was also violated in Greenburgh and a concern that the Drug Courts maybe a place to hide cases involving questionable 4th Amendment search and seizure police actions.

In sum, these reports raise legitimate concerns for Court Administrators who are looking to get the most out of dwindling resources. However, they also raise legitimate concerns for anyone accused of a drug related or drug motivated, non-violent crime. The reports concede the numerous people that have been helped by Drug Courts. But anyone considering entering a Drug Court program needs experienced criminal defense counsel who can help them to get to have all of the information and go into the program with their eyes wide open about the expectations of the program and the consequences of failure.

In New York, one is guilty of criminal possession of marihuana in the fourth degree when they knowingly and unlawfully possess one or more preparations, mixtures, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate (total) weight of more than two ounces. [PL 221.15]
As with Criminal Possession of Marihuana in the Fourth Degree, Criminal Possession of Marihuana in the Fifth Degree is an “aggregate” weight offense meaning that the weight of fillers and other non-drug substances is counted in the weight calculation. In other words, one is guilty of Criminal Possession of Marihuana in the Fourth Degree if they knowingly and unlawfully possess 56 grams of tea leaves mixed with one gram of marihuana. Moisture that adds to the overall aggregate weight is also counted.
As of November 15, 2010, Criminal Possession of Marihuana in the Fourth Degree is an A misdemeanor punishable as follows:
Up to one year imprisonment [Penal Law 60.01(3)(a) and 70.15(1)];
Intermittent Imprisonment;

A split sentence of up 60 days imprisonment with 3 years probation or a 1 year conditional discharge [Penal Law 60.01(2)(d)];

A split sentence of up to 4 months intermittent imprisonment with 3 years probation or on 1 year conditional discharge [Penal Law 60.01(2)(d)];

Three years probation [Penal Law 60.01(2)(a)(i) and 65.00];

Interim probation for one year (can extend beyond one year if defendant gets treatment) [CPL § 390.30(6)];

One year conditional discharge [Penal Law 60.01(2)(a)(i) and 65.05]; or

Unconditional discharge [Penal Law 60.01(3)(d) and 65.20(1)];

In addition to the above sentences, a fine of up to $1,000.00 or double the gain may also be imposed [Penal Law 60.01(2)(c), 60.01(3)(b), 60.01(3)(c), and 80.05];

The court must suspend the defendant’s driver’s license and may suspend his registration for up to 6 months [VTL 510(2)(b)(v);

Surcharges and other fees are mandatory [PL 60.35(1)(a)(ii); PL 60.35(6); PL 60.35(9)];

Restitution is possible.

The sentences for all offenses in New York change often. Please speak with an experienced criminal attorney if you are charged with any offense in New York to discuss any possible sentence. You can reach us at Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

In New York, it is illegal to possess marijuana (spelled marihuana in the New York State Penal Law) in a public place while it is either, burning or open to public view. The charge is Criminal Possession of Marihuana in the Fifth Degree – a Class B misdemeanor. [NY Penal Law 220.10(1)]. Under this particular subdivision, the quantity of marihuana is irrelevant. Therefore, smoking a joint in a public place is enough to elevate what would otherwise be the non-criminal offense of Unlawful Possession of Marihuana [NY Penal Law 221.05] to the criminal offense of Criminal Possession of Marihuana in the Fifth Degree.
One can also be guilty of Criminal Possession of Marihuana in the Fifth Degree if they possess more than twenty-five grams of marihuana. [PL 221.10(2)]. One need not possess twenty-five pure grams of marihuana to violate PL 221.10(2). Criminal Possession of Marihuana in the Fifth Degree under subdivision two of PL 221.10 is an “aggregate weight” offense meaning the prosecution need not prove that one possessed twenty-five pure grams of marihuana. The weight of all compounds and substances mixed with the marihuana is included in the weight determination. See People v. Nelson, 144 A.D.2d 714 (3rd Dept. 1988)(noting that a 1979 amendment to New York’s marihuana possession statutes adopted an aggregate weight standard). Theoretically, one could possess one gram of marihuana mixed with twenty-five grams of oregano and be convicted of CPM in the Fifth Degree [PL 221.10(2)].
For more information about this or any other criminal matter, feel free to contact Tilem & Campbell toll free at 1-877-377-8666.

Having an experienced New York drug attorney is essential to getting the best possible outcome for your drug charge. Experienced criminal defense lawyers that know how to fight drug cases know that there are substantial differences in the way Marijuana cases are treated (spelled Marihuana in the the New York State Penal Law) and the way other drugs are treated. New York State treats marihuana offenses differently that most other drug offenses. Most importantly, marihuana is not a controlled substance under New York law. Therefore, offenses involving marihuana are not subject to New York’s harsh controlled substance laws. In fact, marihuana offenses in New York are codified in their own separate Article in the New York State Penal Law (Article 221) while Controlled Substance offenses are codified in Article 220 of the New York Penal Law.
This does not mean that possession of large quantities, or distribution of marihuana are not serious offenses in New York - they are. However, simple possession of 25 grams or less of marihuana in New York is generally not a criminal offense. [PL 221.05 & 221.10]. That means you or your teenage child can be caught with almost an ounce of marihuana (with an ounce being 28 grams) and most likely will only be charged with the non-criminal violation of Unlawful Possession of Marijuana (UPM). [PL 221.05]. Unlawful Possession of Marijuana is a non-criminal violation punishable as follows:
Generally: A fine of not more than $100.00
If You Were Arrested
And Convicted For One
Controlled Substance
Offense Within The
Three Years Immediately
Preceding Your Current
Arrest for UPM A fine of not more than $200.00

If You Were Arrested
And Convicted For Two
Controlled Substance
Offense Within The
Three Years Immediately
Preceding Your Current
Arrest for UPM A fine of not more than two hundred fifty dollars or a term
of imprisonment not in excess of fifteen days

For more information about UPM, other marihuana offenses or controlled substance offenses in New York, please contact Tilem & Campbell toll free at 1-877-377-8666.

Possession of 25 grams or less of marihuana in New York is generally not a criminal offense. [PL 221.05]. Therefore, simple possession of an unlit “joint” or a “nickel or dime” bag in New York is generally only charged as the violation - Unlawful Possession of Marihuana. One can be charged criminally with Criminal Possession of Marihuana in the Fifth Degree – a Class B Misdemeanor if the marihuana is in a public place and burning or open to public view. [PL 221.10].
Furthermore, prior convictions for UPM do no elevate a new UPM charge to a criminal offense. There are some offenses found in the Penal Law or the Vehicle and Traffic Law which are elevated to a more serious charge if one has a prior conviction for the same offense. For example, if one is arrested for DWI they are generally charged with DWI as an unclassified misdemeanor. However, if they have a prior DWI conviction within the ten years prior to their arrest on the current DWI, the current DWI can be elevated to a Class E felony.
That’s not the case with Unlawful Possession of Marihuana [PL 221.05]. Nothing elevates UPM to a criminal offense. Even if you have 50 prior convictions for UPM, if you are caught with 25 grams or less of marijuana, you still are only facing the non-criminal violation of Unlawful Possession of Marihuana. Prior controlled substance convictions may result in a higher fine but will not operate to elevate the UPM to a criminal offense. I will discuss when a prior controlled substance conviction may result in a higher fine on a current UPM in a future blog.
For more information about Unlawful Possession of Marihuana, other marihuana offenses, controlled substance offenses or other criminal matters, please contact us toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

As a former Manhattan Prosecutor I have presented hundreds of cases to grand juries in New York. As a partner at a prominent criminal defense firm I have sat with clients inside the grand jury as they were questioned by prosecutors. With recent news reports about the a New York County Grand Jury considering charges against New York Giants stars Plaxico Burress and Antonio Pierce, it is important to understand exactly what a grand jury is and how it operates.

No person may be tried on a felony charge in New York unless a grand jury has considered evidence and voted an indictment or unless the person has waived indictment. The grand jury itself is made up of between 16 and 23 people. They are charged with the duty of hearing and examining evidence involving offenses or misconduct whether or not the misconduct is criminal. In order for a grand jury to vote an indictment 12 of the grand jurors must vote to indict.

The burden to vote for an indictment is low. A grand juror need only find that there is reasonable cause to believe that a person committed an offense. In laymans terms that means that a grand jury need only find sufficient evidence to accuse a person of having committed a felony. This is a very different standard than the proof "beyond a reasonable doubt" needed to convict someone of a crime.

The burden to obtain an indictment is so low that the former Chief Judge of New York State, Sol Wachtler, humorously noted that a prosecutor could persuade a grand jury to "indict a ham sandwich." It is not only the low burden that makes it so easy to indict, it is an area of the Court that is almost exclusively controlled by the prosecutor. Although, in theory the grand jury is supervised by the Court, no Judge sits in the grand jury room while they are hearing evidence or deciding cases. It is the prosecutor that presents all of the evidence and instructs the grand jury on the law. It is the prosecutor who decides what evidence the grand jury will see and which witnesses they will hear.

Although the prosecutor truly controls the goings on in a grand jury, a target of a grand jury investigation or presentation has certain rights which will be discussed in a future blog. In the meantime, if you are charged with a felony or believe that a grand jury may be considering charges against you, contact one of the lawyers at the New York criminal defense firm, Tilem & Campbell.

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

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)

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.

For more information about this and other sentencing issues, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com

As I have been discussing in previous blogs, the rationale behind the 100:1 powder cocaine to crack cocaine sentencing disparity has been proven to be unfounded and false. Yet another argument the New York criminal defense firm Tilem & Campbell is raising in one of our appellate challenges to the constitutionality of the sentencing disparity between crack cocaine and powder cocaine is that crack cocaine and powder cocaine are the same drug.

As observed by the United States Supreme Court, crack and powder cocaine are two forms of the same drug and they share the same active ingredient - cocaine hydrochloride. Kimbrough v. U.S. 128 S.Ct. 558, 566 (2007). Furthermore, numerous studies have shown that the physiological and psychotropic effects of crack and powder cocaine are the same, and the drugs are now widely acknowledged as pharmacologically identical.

For example, a 1996 study published in the Journal of the American Medical Association found analogous effects on the body for both crack and powder cocaine.

Similarly, Charles Schuster, former Director of the National Institute on Drug Abuse and Professor of Psychiatry and Behavioral Sciences, found that once cocaine is absorbed into the bloodstream and reaches the brain its effects on brain chemistry are identical regardless of whether it is crack or powder.

In fact, crack cocaine is made by taking cocaine powder and cooking it with baking soda and water until it forms a hard substance. This hard substance can then be broken into pieces (rocks) and sold in small quantities.

Whether it remains powder cocaine or is “baked” into crack cocaine, the fact remains that they are the same drug and produce the same effects on the body. There can be therefore, no rationale basis to punish crack cocaine offenses more severely than powder cocaine offenses.

If you would like a free consultation regarding any New York or federal drug offense or sentencing issue, feel free to contact Tilem & Campbell toll free at 1-888-ANY-CRIME or visit us on the web at 888ANYCRIME.COM.

As I have previously discussed, Congress justified Draconian mandatory minimum sentences for federal crack cocaine offenses upon their mistaken belief that, among other things, crack cocaine was more dangerous than powder cocaine because it was believed to be more addictive and create more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular with teenagers; and that its low cost made it more accessible and popular.

These concerns and beliefs have proven false. As observed by Congressman Alcee Hastings (D Fl): “Rather than waging war on drugs, [the mandatory minimums for crack offenses] waged war on America's poor and minorities.” Rep. Hastings also noted that the crack mandatory minimums were “rooted in propaganda rather than empirical data.” (See Congressman Alcee Hastings’ website )

The reality is, the mandatory minimums are not being imposed on the “major” and “serious” suppliers of crack cocaine but instead the majority of crack cocaine defendants are small-scale, street-level dealers. The 100:1 ratio disproportionately impacts far more low-level traffickers than it does the intended targets of the ratio. As observed by the Supreme Court, “the 100-to-1 ratio can lead to the anomalous result that retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

Indeed, both the Sentencing Commission and the United States Supreme Court have acknowledged that real world experiences have shown us that the reasoning and assumptions that led to the creation of the 100:1 ratio have proven false.

Tilem & Campbell has presented the above arguments in an appeal currently pending before the Second Circuit Court of Appeals challenging the constitutionality of the crack v. powder cocaine disparity. We are arguing, among other things, that there is absolutely no rational basis to incarcerate those convicted of crack cocaine offenses (who are overwhelmingly African-American) significantly longer than those convicted of powder cocaine offenses (who are overwhelmingly Caucasian) involving similar weight.

If you or a loved one needs legal representation for an upcoming sentencing hearing, sentence appeal, or needs legal advise any any federal or New York criminal case contact one of the experienced criminal attorneys at Tilem & Campbell toll free at 1-888-ANY-CRIME or visit us on the web at www.888ANYCIME.com.

New York criminal defense firm Tilem & Campbell is vigorously challenging the constitutionality of the mandatory minimum sentences for federal crack cocaine offenses set forth in the Anti-Drug Abuse Act of 1986 (ADAA). We currently have one appeal on this issue pending before the Second Circuit Court of Appeals and will be filing another appeal shortly.

The ADAA established a two-tier system of sentencing with 5 and 10 year mandatory minimum sentences for certain manufacturing and distribution offenses. Congress passed the 10 year mandatory minimum to combat “major drug dealers” while the 5 year mandatory minimum was for the “serious traffickers”. In reality, however, the mandatory minimums are weight driven. It is the weight of the drugs involved that controls with no regard for whether the defendant is a “major dealer” or “serious trafficker”.

The ADAA also established a 100-to-1 disparity between the distribution of powder cocaine and crack cocaine (21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B)). For example, distributing just 5 grams of crack cocaine (about a thimble full) carries a mandatory minimum five-year federal prison sentence. However, one must distribute 500 grams of powder cocaine to trigger that same five-year federal prison sentence. (21 U.S.C. § 841).

The absurdity of this disparity is even more apparent when discussing the 10 year mandatory minimum found in 21 U.S.C. § 841(b)(1)(A), (B). Distributing just 50 grams of crack cocaine (less that 2 ounces) triggers a 10 year mandatory minimum. However, it would take 5000 grams of powder cocaine or "5 kilos" to trigger the same 10 year mandatory minimum. That’s a staggering disparity which is not supported by facts, reasons or reality.

The staggering disparity between crack and powder cocaine sentencing can be better appreciated when the two sentences are compared side by side:

Federal Mandatory Minimum Drug Sentences for First Time Cocaine Offenders:

DRUG FIVE YEARS NO PAROLE 10 YEARS NO PAROLE
Crack Cocaine 5 grams (approx a sugar packet) 50 grams
Powder Cocaine 500 grams 5 kilos (5000 grams)

These mandatory minimums for crack offenses were passed because Congress mistakenly believed that crack was more dangerous than powder cocaine because it was thought to be more addictive and involve more violence than powder cocaine; that it was more harmful than powder cocaine; that it was popular amongst teenagers; and that its low cost made it more accessible. See Kimbrough v. U.S., 128 S.Ct. 558, 564 (U.S.,2007).

As I will discuss in my next blog, these concerns and assumptions proved to be unfounded and not supported by the facts. In fact, 23 years of real world experience has shown us that there is absolutely no rational basis for sentencing crack offenses any differently than powder cocaine offenses.

If you are awaiting sentencing, want to appeal a sentence or have any other questions about an appeal issue, feel free to contact one of the experience federal criminal defense attorneys at Tilem & Campbell toll free at 1-888-ANY-CRIME for a free consultation or visit us on the web at 888ANYCRIME.COM

Just 16 years after the passage of The Comprehensive Drug Abuse Prevention and Control Act of 1970 which all but eliminated harsh mandatory minimums for federal drug offenses, Congress reversed course and passed The Anti-Drug Abuse Act of 1986 (ADAA). The ADAA was passed by Congress during the media frenzy that followed the cocaine induced death of University of Maryland basketball star Len Bias. The ADAA established harsh mandatory minimum sentences for federal drug offenses involving “crack” cocaine (referred to as “cocaine base” in the federal statutes).

Congressional members used Bias’ high-profile death as a political opportunity to portray a “tough on crime” stance. However, Congress utterly failed to undertake any discussion or debate about the failings of the mandatory minimums found in the The Boggs Act of 1951and the Narcotics Control Act of 1956 (which I have discussed in previous blogs).
In fact, Sen. Specter noted that Congress “may be acting with undue haste” and Sen. Mathias stated that none of the members of the Senate “had an adequate opportunity to study this enormous package” and that the ADAA “did not emerge from the crucible of the committee process, tempered by the heat of debate.”

As I have discussed in prior blogs, the ADAA established Draconian mandatory minimums for relatively small quantities of crack cocaine while mandating much shorter sentences for an equal amount of powder cocaine. However, 23 years of experience has shown us that the fears that Congress used to justify these obscene mandatory sentences for crack offenses have simply not materialized.

Tilem & Campbell is currently challenging the constitutionality of the powder cocaine v. crack cocaine sentencing disparity in the Second Circuit Court of Appeals. We also anticipate filing another appeal shortly (also in the Second Circuit) arguing that the powder v. crack sentencing disparity violates African-Americans’ equal protection rights. Should you have a sentencing issue or appeal you would like to discuss with our attorneys, call 1-888-ANY-CRIME toll free or visit us on the web at 888anycrime.com

In continuing with my commentary on federal mandatory minimum sentencing for drug offenses and Tilem & Campbell’s challenge to the constitutionality of such sentences, it’s of paramount importance to point out other, influential groups and individuals who are also opposed to mandatory minimums for drug offenses. As previously discussed, former Presidents Kennedy, Johnson and Nixon were all opposed to mandatory minimums for drug offenses and, at Nixon’s urging, in 1970, Congress abolished almost all mandatory minimum sentencing for federal drug offenses with the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

These former Presidents were not, and are not, the only influential individuals opposed to such sentences. With regard to the Boggs Act of 1951 and the Narcotics Control Act of 1956 (both of which contained draconian mandatory minimum sentences for federal drug offenses), a Senate Judiciary Subcommittee found that 92 percent of federal prison wardens who responded were opposed to the mandatory minimum sentences, and 97 percent were opposed to the prohibition against probation or parole. Of the probation officers who responded, 83 percent were opposed to mandatory minimums while 86 percent were opposed to prohibition against probation or parole. Of the federal judges who responded, 73 percent were opposed to mandatory minimums, and 86 percent were opposed to the prohibition against probation or parole.

Many members of law enforcement also supported the Comprehensive Drug Abuse Prevention and Control Act of 1970 and its elimination of the mandatory minimum sentences found in the Boggs Act of 1951 and the Narcotics Control Act of 1956. According to then Congressman William L. Springer (R Ill.): “It is the opinion of most law enforcement people that the harsh mandatory sentences in narcotics law have been a hindrance rather than an aid to enforcement.”

Tilem & Campbell is vigorously challenging the constitutionality of the current mandatory minimum sentences for crack cocaine offenses and the corresponding 100:1 powder cocaine/crack cocaine ratio. It is this ratio that brings about tremendously longer sentences for blacks and minorities convicted of crack offenses than their white counterparts convicted of powder cocaine offenses involving equal weight. If you are currently charged with a crime and are in need of a federal criminal defense attorney or if you have been convicted of a crime and which to discuss various post conviction remedies such as an appeal, contact Tilem & Campbell at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

Tilem & Campbell is currently appealing the constitutionality of the federal mandatory minimums for federal crack offenses and the 100:1 powder cocaine/crack cocaine rationale. In continuing with a thorough review of the failings of prior mandatory minimums for drug offenses, I previously touched on the Boggs Act of 1951 and the Narcotics Control Act of 1956. When Richard Nixon took office in 1969 he supported enforcement of then current drug laws to combat the county’s admitted drug problem. However, he came to realize that was not the best course of action.
(See www.presidency.ucsb.edu/ws/index.php?pid=2353&st=&st1=. (Visited December 14, 2008).

Nixon backed away from mandatory minimums and pushed The Comprehensive Drug Abuse Prevention and Control Act of 1970 (hereinafter the “1970 Act’) through Congress which eliminated all of the mandatory minimum drug sentences but one. (Mandatory minimums from between 10 and 20 to life remained for Engaging in a “continuing criminal enterprise”). The 1970 Act was an acknowledgment of failings of both the Boggs Act of 1951 and the Narcotics Control Act of 1956. The 1970 Act was in lock-step with President Kennedy’s aversion to the mandatory minimums, Kennedy’s Commission’s findings against the mandatory minimums and President Lyndon Johnson’s opposition to the mandatory minimums. The Act had wide bi-partisan support including that of then Congressman, and future President of the United States, George H. W. Bush who supported the repeal of the mandatory minimums found in the Narcotics Control Act of 1956.

Considering the failings of mandatory minimums in the past as well as the current findings of the United States Sentencing Commission all in opposition to mandatory minimums and the 100:1 ratio in general, any rational basis for such mandatory minimums and their disproportionate impact on minorities falters.

To discuss any type of criminal case, federal sentencing issue, federal or state criminal appeal, feel free to contact us toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.

As I indicated in prior blogs, Tilem & Campbell is currently appealing two cases challenging the constitutionality of the federal mandatory minimum sentences for crack cocaine offenses and the 100:1 powder cocaine-to-crack cocaine ratio that results in grossly disproportionate sentences between the mostly minority crack offenders and their mostly white powder cocaine cohorts.

One Appellant Brief is already submitted in the United States Court of Appeals for the Second Circuit and as the drafter of that Brief, I chose to analyze many different sources of information to show that the crack cocaine mandatory minimum sentencing laws (21 USC 841) were based on flawed data and have not achieved their intended goals. In doing so, I analyzed the history of other Congressional Acts imposing draconian mandatory minimums for drug offenses including the Boggs act of 1951 and the Narcotics Control Act of 1956. I also discussed President Kennedy’s disfavor for mandatory minimums and the conclusions of a Commission he assembled critical of such sentences and their recommendation that sentences fit both the offender and the offense and that rehabilitation should be the most important goal – not retribution.

I chose this strategy not to fill up space discussing irrelevant long-abolished statutes or the policies’ of Presidents who served 35 to 45 plus years ago but instead to elucidate the fact that the draconian mandatory minimum sentences of imprisonment for drug offenses has consistently failed over decades and tens of thousands of cases to solve the problem and stem the flow of drugs and their use. It was and remains the objective of my Brief to attack these mandatory minimums not only on strict scrutiny analysis but also on the rationale basis front.

In other words, I want to show the Second Circuit, through solid empirical data, that this mandatory minimum, throw away the key approach has consistently failed; that study after study has concluded that the rational for the mandatory minimums for crack and the 100:1 ratio was flawed and that mandatory minimums have failed for over 57 years to achieve their desired goal; and that the Kennedy Administration, the Johnson Administration and the Nixon Administration all opposed mandatory minimum sentences for drug offenders based upon extensive Committee research.

Our Brief followed with commentary regarding the Sentencing Commission’s strong disagreement with the ratio and the mandatory minimums as well as the United States Supreme Court’s acknowledgment in Kimbrough that the fears were unrealized and that crack and powder cocaine are one in the same drug. Our brief also analyzed and the pending bi-partisan support for Legislation abolishing the ratio. This I argued, supports a strong argument the current laws fail under strict scrutiny analysis because they are not narrowly tailored to achieve a compelling government interest insofar as all the experts recommend rehabilitation over incarceration and therefore, for a mandatory minimum to be deemed narrowly tailored, it cannot lump all offenders, (both addicts and major suppliers), in the same category.

The mandatory minimums for crack cocaine also fail the rational basis test because we are imprisoning minorities for decades for crack offenses while their white counterpart is receiving less than two years for powder offenses involving 100 times the amount of powder cocaine which, as authoritative experts have determined, is the same drug.

Continue reading "FEDERAL MANDATORY MINIMUM DRUG SENTENCING: LYNDON JOHNSON TAKES OFFICE AND ESTABLISHES THE KATZENBACH COMMISSION" »

Tilem & Campbell is currently appealing the constitutionality of the federal crack cocaine statutory mandatory minimum sentences (21 USC 841). In our most recent appeal, we discussed, among other things, the history of mandatory minimum sentences for federal drug offenses starting with the Boggs Act of 1951 and followed by the Narcotics Control Act of 1956. Both Acts imposed onerous mandatory minimum prison terms for relatively minor drug offenses. Both Acts also failed to stem the flow of drugs and their use. We discussed these prior Acts and their utter failures, as well as other empirical data, to support our argument that mandatory minimums for drug offenses have no rational basis.

In 1963, President Kennedy assembled the President’s Advisory Commission on Narcotics and Drug Abuse to address the country’s drug problem. Recall, at that time, drug offenders were facing the mandatory minimums found in Narcotics Control Act of 1956. The Commission studied drug use and the laws pertaining to those who abused drugs. The Commission concluded that rehabilitation rather than retributive punishment was essential to addressing the problem.

Regarding sentencing, the Commission opined that penalties should fit both the offender and the offense and be tailored to promote the offender’s rehabilitation. Draconian sentences, concluded the Commission, did not provide an effective deterrence. To the contrary, the Commission observed that the drug users were risking long prisons sentences to get their drugs. In other words, the lengthy mandatory minimums were having little or no affect on drug use.

President Kennedy’s disagreement with mandatory minimums was evidenced by his extensive use of his pardon power to free inmates languishing in prison. President Kennedy’s issuance of pardons and his commutation of lengthy drug sentences indicated to Congress his desire for a change in federal sentencing for drug offenders. This change, however, would not come about until 1970. As discussed in my next blog, after President’s Kennedy’s tragic assassination in the fall of 1963, President Lyndon Johnson also opposed mandatory minimum sentences for drug offenses.

To avoid the potential for a Presidential pardon or commutation, some plea agreements (and I suspect more in the future) were also requiring that the defendant waive his right to seek a Presidential pardon or commutation. If you have a question about a plea agreement, sentencing issue, appeal or other criminal legal matter, contact Tilem & Campbell toll free at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

Tilem & Campbell is vigorously challenging the federal mandatory minimum crack cocaine sentencing scheme found in 21 USC 841. We are currently appealing two cases to the United States Court of Appeals for the Second Circuit. While most believe mandatory minimums were a new concept resulting from the crack cocaine explosion in the early 1980s, the truth is, mandatory minimums for drug offenses have a 57 year history in the United States. As you will learn, from their inception, mandatory minimums have never achieved their desired result.

Draconian mandatory minimums for drug offenses were previously implemented by Congress in 1951 and 1956 and they failed miserably and were ultimately repealed. One thing that is apparent about our government officials including the elected Legislatures, Presidents as well as the appointed members that head our Administrative agencies and the Federal Judiciary is that they simply do not learn from history. It’s as if they don’t even know it.

The Boggs Act of 1951
What Congress was seemingly oblivious to when they slammed through The Anti-Drug Abuse Act of 1986 (and its draconian mandatory minimums for relatively small amounts of crack cocaine) in the middle of the night, was that approximately 35 years earlier in 1951, Congress had passed the Boggs Act which also had established mandatory minimum prison sentences for drug crimes.

Under the Boggs Act, simple possession of cocaine, heroin or cannabis carried a mandatory minimum 2 years with a maximum 5 years prison term. A second offense carried a mandatory minimum 5 years with a maximum of 10 years in prison. A third offense carried a mandatory minimum of 10 years with a maximum of 15 years in prison. Just as the 1986 ADAA was supported with flawed science, unfounded fears, and outright and erroneous concerns; so too was the Boggs Act and subsequent federal drug laws.

Continue reading "A BRIEF HISTORY OF FEDERAL MANDATORY MINIMUM SENTENCING FOR FEDERAL DRUG OFFENSES" »

As I indicated in prior blogs, Tilem & Campbell is currently challenging the constitutionality of the federal mandatory minimum sentences for federal crack cocaine offenses. We currently have an appeal pending in the United States Court of Appeals for the Second Circuit and will be filing another shortly on behalf of an African-American appellant.

Our current appeal concerns an Hispanic defendant sentenced to the 10 year mandatory minimum for four federal felonies involving approximately 112 grams of crack cocaine (21 USC 841). We challenged the constitutionality of the 10 year mandatory minimum sentence on three grounds. Briefly, we argued that depriving the defendant of his liberty, a fundamental right, longer than one convicted of a powder cocaine offense involving the same weight violates his equal protection rights under both strict scrutiny and rational basis review.

We also argued that the 100:1 ratio and corresponding grossly disproportionate sentences imposed upon minorities for crack offenses compared to those sentences imposed upon the mostly white offenders convicted of powder cocaine offenses involving the same weight violates the defendant’s Fifth Amendment Equal Protection rights (note, the Equal Protection rights found in the Fifth Amendment apply to the Federal Government while the Equal Protection Clause in the Fourteenth Amendment applies to the States).

Finally, we argued that putting one in a jail for a decade for a crack offense when a powder cocaine offender convicted of an offense involving the same weight would receive less than two years violates the Eighth Amendment.

The above arguments are based on sound reasoning supported by numerous reports prepared the United States Sentencing Commission (the experts in the area of sentencing), the United States Supreme Court’s reasoning in Kimbrough as well as many government leaders as evidenced by the numerous proposed Bills which would abolish the ratio or drastically reduce it.

For more information about a federal sentencing issue, federal drug case, a New York drug case, an appeal or representation on any criminal matter, contact Tilem & Campbell 1-888-ANY-CRIME for a free consultation or visit www.888AnyCrime.com.

At Tilem & Campbell, we represent a wide variety of defendants charged with anything from traffic infractions to serious felonies including controlled substance offenses. In a recent federal case, we represented a defendant charged in the United States District Court for the Southern District of New York with four drug offenses involving a total of approximately 112 grams of crack cocaine. Three of the offenses were Class A felonies which carried a mandatory minimum sentence of 10 years with a maximum of life imprisonment. Due to a prior drug felony, however, had the defendant gone to trial and lost, he would have been facing 20 years to life. The remaining offense was a Class B felony which carried a mandatory minimum sentence of 5 years with a maximum of 40 years imprisonment.

Senior Partner, Peter Tilem, a former Assistant District Attorney in the New York County District Attorney’s Office (Manhattan) was defendant’s lead attorney and successfully negotiated a plea bargain pursuant to which the defendant would plead guilty as charged. In return the Government would not seek the 20 year mandatory minimum but instead would recommend the 10 year mandatory minimum. The plea agreement did not require that the defendant waive his right to appeal his sentence.

The imprisonment range recommended by the U.S. Sentencing Guidelines as calculated in the Pre-sentence Investigation Report was 78-97 months based upon a base offense level of 27. However, due to the statutory mandatory 10 year minimum term of imprisonment found in 21 U.S.C 841(a)(1) and 841(b)(1)(A) for offenses involving crack cocaine, the defendant’s minimum term imprisonment increased to 120 months pursuant to USSG § 5G1.1(b).

This sentencing range was substantially higher than it would have been had the offenses involved powder cocaine because the Guidelines as well as the relevant statute (21 U.S.C 841) treat one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, had defendant been sentenced for a powder cocaine offense involving the same quantities, he would have been facing a sentencing range of 15-21 months.

Continue reading "TILEM & CAMPBELL APPEALS DISTRICT COURT’S FINDING THAT THE FEDERAL STATUTORY MANDATORY MINIMUM SENTENCES (21 USC 841) FOR COCAINE BASE (“CRACK”) OFFENSES ARE CONSTITUTIONAL." »

At Tilem & Campbell, we often consult with and are retained by those facing or serving 5, 10 or 20 year federal statutory mandatory minimum sentences for cocaine base (crack) offenses. Many individuals mistakenly believe that the United States Supreme Court’s 2007 decision in Kimbrough v United States, 128 S. Ct. 558 struck down the statutory mandatory minimums for crack offenses. The decision did no such thing and has been widely misinterpreted as having struck down the federal statutory mandatory minimums for crack offenses as well as the 100:1 powder cocaine to crack cocaine ratio. In fact the Kimbrough case concerned a Booker issue – not a statutory mandatory minimum challenge. The Kimbrough decision held that the 100:1 ratio found in the United States Sentencing Guidelines is merely advisory; as are all of the Guidelines after Booker.

The Kimbrough decision held that a sentencing court may consider the 100:1 crack/powder cocaine disparity found in the Guidelines when determining a sentence. In Kimbrough, the defendant’s Guideline range was well above the statutory mandatory minimum. What the District Court did was consider the 100:1 ratio and its effect on the sentencing range. Based upon that consideration, the District Court, decided that the ratio resulted in an overly excessive sentencing range and sentenced the defendant to a sentence below the advisory sentence as calculated under the Guidelines – but above the 10 year statutory mandatory minimum.

However, the reasoning and discussion in Kimbrough established that the United States Supreme Court has now acknowledged that the fears that one time supported the 100:1 crack/powder sentencing disparity have proved unfounded and that crack cocaine and powder cocaine are the same drug and bring about the same physiological effects of the user. The decision also cited numerous Commission reports critical of the ratio and urging its abolishment.

For more information about the federal mandatory minimum sentences for cocaine offenses as well as Tilem & Campbell’s appellate challenges to such federal sentences, call 1-888-ANY-CRIME or visit www.888AnyCrime.com

Recently, Tilem & Campbell filed an appeal challenging the constitutionality of the federal statutory mandatory minimum sentences applicable to crack cocaine offenses and the 100:1 powder cocaine vs. crack cocaine ratio. The issues raised in the appeal will be discussed in future blogs as will the United States Supreme Court’s recent decision in Kimbrough v United States, 128 S. Ct. 558 (2007).

However, one must have a basic understanding of the federal statutory mandatory minimum sentencing statutes and how they apply to both powder cocaine and crack cocaine to understand the arguments against them as well as the Kimbrough decision. Germane to this discussion is an understanding of the often discussed 100:1 powder cocaine/crack cocaine ratio. It is this ratio that has resulted in crack offenders spending decades in prison while powder cocaine offenders convicted of offenses involving the same weight often spend less than two years in prison.

Basically, for sentencing purposes in the federal system, the relevant statute (21 U.S.C 841) treats one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, possession of just 5 grams of crack cocaine (about a thimble full) triggers a five year mandatory minimum sentence. However, it would take 500 grams of powder cocaine (1/2 kilo) to trigger the same mandatory minimum. (See 21 USC 841). Therefore, one who possesses what is clearly a personal use amount of crack cocaine (5 grams) faces the same sentence as a major dealer of powder cocaine.

Indeed, 500 grams of powder cocaine becomes 1000 grams (or more) after being “cut” for resale. One thousand grams of powder cocaine equals approximately 36 ounces of powder cocaine. Therefore, the hapless crack junkie caught with what is clearly a personal use amount of crack cocaine (5 grams) must be sentenced to the same mandatory 5 year minimum that a major powder cocaine supplier would face for an offense involving 100 times the quantity.

The lunacy of the mandatory minimum crack sentences is even more apparent when dealing with just 50 grams of crack cocaine; just under 2 ounces. Offenses involving fifty grams of crack cocaine trigger a mandatory minimum 10 year sentence. However, under the 100:1 ratio, it would take 5000 thousand grams of powder cocaine (5 kilos) to trigger the same 10 year mandatory minimum. (See 21 USC. § 841(b)(1)(A)(II) (triggering 10 year mandatory minimum for offenses involving 5 kilograms (5000 grams) of powder cocaine). Recall, 50 grams of crack is just under 2 ounces (56 grams would be 2 ounces). However, 5000 grams of powder cocaine is approximately 179 ounces. If cut for resale, that 5000 grams of powder cocaine could easily become 10,000 grams; or about 360 ounces. That is major supplier weight.

Because crack cocaine is more prevalent in minority communities, especially African-American communities, African-Americans and other minorities are facing decades in prison while their white counterparts who deal in powder cocaine (which is the same drug) often times face 2 years or less. This racial disparity in sentencing for offenses involving what is the same drug has been, and will continue to be, the basis of equal protection challenges to the ratio. This will be discussed in future blogs.

The above is just a brief summary of a very complex issue. I will be discussing this issue in great detail in coming blogs including a detailed discussion about Tilem & Campbell’s federal appellate challenges to the crack cocaine mandatory minimums. For further information regarding sentencing issues or other criminal matters, contact Tilem and Campbell at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

As discussed in the previous blog, under certain circumstances, all occupants of a vehicle can be presumed to possess drugs, guns or other weapons found within the vehicle. We also discussed the effect of the presumption on the New York criminal case and went into some detail about the presumption as it applies to New york gun cases and New York Weapon cases.

Now we discuss the vehicle presumption as it applies to New York controlled substance cases. With certain drug possession offenses carrying a mandatory minimum of eight years, the stakes are very high when traveling in a vehicle with someone who may possess illegal drugs. Similar to the gun presumption, New York’s drug presumption applies to all vehicles except public buses (it applies in stolen vehicles unlike the gun presumption). According to a strict reading of the statute, the drug presumption applies to all persons in the vehicle at the time the drugs are found. Since generally the police take all of the occupants out of the vehicle, I would argue that in such a case the presumption does not apply.

Like the gun presumption, the drug presumption does not apply in three circumstances. The presumption does not apply to a cab driver or livery cab driver. It does not apply if a person in the vehicle is authorized to possess the controlled substance (has a prescription for the drug) and the drug is in the same packaging as when he received it. The presumption also does not apply when the drugs are found on the person of one of the occupants.

It is also important to remember that since the presumption only applies to controlled substances and marihuana (or marijuana) is not a controlled substance under New York Law, the presumption does not apply to marihuana.

If you are charged with any New York narcotics offenses contact one of the experienced criminal defense lawyers at Tilem & Campbell.

New York Criminal Law establishes a presumption that all people in a vehicle are presumed to possess either drugs or guns that are found within the vehicle. What that means is that in New York each and every person inside a car will generally be charged with gun possession or drug possession for contraband that is found anywhere in that car, regardless of where the drugs or guns are found. (With certain exceptions, some of which are discussed below.)

NEW YORK GUN POSSESSION PRESUMPTION

In the case of gun, with possession of a loaded gun in New York carrying a mandatory minimum of three and one half years in prison, you are taking a tremendous chance driving with someone who may have an illegal gun. The New York gun presumption applies to all vehicles except stolen vehicles and public buses and applies not only to firearms but other weapons. The presumption has three major exceptions. The presumption does not apply if the weapon is recovered on the person of one of the occupants of the vehicle. It does not apply to the driver of a cab or livery cab and the presumption does not apply if one of the occupants has a license to carry the weapon concealed.

The presumption, however, does apply if one of the occupants has the firearm or other weapon on his person and discards it on the floor of the vehicle as the police are pulling over the vehicle. This situation can arise quickly and put everyone in the vehicle at risk under the presumption.

To learn about New York's vehicle presumption as it applies to New York drug cases click here.

EFFECT OF THE PRESUMPTION

It is important to remember that both the drug and gun (or weapon) presumptions under New York law are rebuttable presumptions. That means that although there is a presumption that all occupants of the vehicle are presumed to possess the contraband, evidence can be introduced to show that in fact one or more of the occupants did not possess the contraband. In other words, the presumption does not relieve the prosecutor of his or her burden to prove every element of the crime beyond a reasonable doubt. It also gives the person charged under the presumption automatic standing to challenge the constitutionality of the police conduct. That means that it gives a person charged under a presumption the right to seek suppression of evidence that they might not otherwise to be able to challenge.

So if you or a loved one are charged with a New York weapon offense or a New York gun offense under New York’s gun presumption or a New York Controlled Substance offense under New York’s controlled substance presumption, contact an experienced New York criminal defense lawyer who has experience in these types of cases. Contact Tilem & Campbell for any questions about New York criminal matters.

New York criminal defense firm Tilem & Campbell has filed Court papers seeking to prevent the use of mandatory minimum sentences in federal crack cases. Citing the reasoning in the recent Supreme Court decision, Kimbrough v United States that permitted Federal District Courts to consider the "100-1" ratio when considering whether or not to sentence below the federal sentencing guidelines in crack (or cocaine base) cases, Tilem & Campbell asked the Courts to take the ruling one step further and declare the mandatory minimums unconstitutional. The "100-1" ratio refers to the fact that under the current federal sentencing scheme, an offender sentenced for cocaine base is likely to get roughly the same sentence as a person sentences for 100 times as much cocaine.

The Supreme Court in Kimbrough found that this "100 -1" ratio was unwarranted based upon the fact that cocaine base (crack) and cocaine are two forms of the same drug with the same active ingredient and the same physiological and psychotropic effects. In addition, citing statistics from the United States Sentencing Commission, the Supreme Court indicated that there was a racial disparity with minorities and in particular African-Americans receiving longer sentences for crack offenses than their white counterparts who were committing cocaine offenses.

Tilem & Campbell filed the challenges in both the US District Court for the Southern District of New York and the US District Court for the Eastern District Court and decisions are awaited from both Courts.

For more information about the latest developments in Federal crack sentences please subscribe to this blog or contact one of our experienced Federal criminal defense lawyers at

The issue of crack cocaine sentences in federal cases is one that has bothered experienced federal criminal defense attorneys, especially in New York, for some time. Unlike the New York State Court System, where crack is treated the same as cocaine*, in the federal criminal system, individuals charged with crack face the same amount of time as a person who possesses or sells 100 times the amount of cocaine. That is to say, that the sentence for 5 grams of crack (about the amount of tow sugar cubes) and 500 grams of cocaine (half of a kilo) will be approximately the same, all other factors being equal.

This disparity has led to claims of discrimination. In 2006, 82 percent of federal defendants who were sentenced for selling crack were African-American. Even the United States Sentencing Commission seems to agree having reduced crack cases by 2 points on the federal sentencing guidelines and made the reduction retroactive.
In addition, the United States Supreme Court seems to be stepping into the mix. In Kimbrough, a case decided recently in the Supreme Court, the High Court decided that a federal judge may consider the crack-cocaine discrepancy in sentencing someone below the range set by the federal sentencing guidelines.

The problem with both the decision from the Supreme Court and the decision from the US Sentencing Commission is that both decisions only affect crack sentences under the federal sentencing guidelines. The sentencing guidelines only play a role in about 30% of crack cases in federal court. The overwhelming majority of cases, 70%, are covered by mandatory minimums. Possession of fifty grams of crack, for instance, requires a judge to sentence the defendant to a mandatory minimum of 10 years in prison. These cases are affected neither by the US Supreme Court decision in Kimbrough or the reduction imposed by the US Sentencing Commission. The mandatory minimums can only be changed by Congress.

It seems that the tide is changing and so hopefully Congress will be forced to act. The Kimbrough case seems to indicate that even the US Supreme Court recognizes that there is a problem. Here at Tilem & Campbell, we are preparing a motion to ask judges to set aside the mandatory minimums in federal crack cases, arguing that the mandatory minimums are unconstitutional. Now maybe the time to get these draconian drug laws changed.

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*. In fact, in New York State there is no separate crime for possessing or selling crack. Possession or sale of crack is a crime only by virtue of the fact that crack contains cocaine.