CRIMINAL PROCEDURE Category Archives — Page 21 of 24 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

NEW YORK’S ROCKEFELLER DRUG LAWS MAY SOON END

March 9, 2009 | Jasmine Hernandez

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some of the harshest sentences, it now appears that much of the remnants of the Rockefeller Drug laws are going to be repealed.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.

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

March 4, 2009 | Tilem & Associates

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.

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.

March 1, 2009 | Tilem & Associates

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 Crack Cocaine v. Powder Cocaine Sentencing Disparity – Powder Cocaine and Cocaine Base (“Crack”) are the Same Drug

February 20, 2009 | Tilem & Associates

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.

The Assumptions Relied Upon by Congress When it Passed the Mandatory Minimums for Crack Cocaine Offenses Have Proven False. The Justifications for the Sentencing Disparity Between Powder Cocaine and Crack Cocaine are not Supported by Fact or Reason

February 17, 2009 | Tilem & Associates

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).

The Anti-Drug Abuse Act of 1986 Established a 100:1 Crack Cocaine to Powder Cocaine Ratio Resulting in Crack Offenders Receiving Decades in Prison While Powder Cocaine Offenders Receive Months or at Most Several Years in Prison for Offenses Involving the

February 14, 2009 | Tilem & Associates

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 Anit-Drug Abuse Act of 1986 and the Revival of Draconian Federal Mandatory Minimum Sentences

February 11, 2009 | Tilem & Associates

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.”

CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE – SWITCHBLADE KNIFE.

February 8, 2009 | Tilem & Associates

“Switchblade Knife” is defined in New York as any knife that has a blade which opens automatically by hand pressure applied to a button, spring or other device within the knife’s handle. (For the exact definition of “Switchblade Knife” see NY Penal Law § 265.00(4)).

It is an “A” Misdemeanor to possess a switchblade knife (Penal Law § 265.01(1) – Criminal Possession of a Weapon in the Fourth Degree). However, it is not a crime to possess a switchblade knife if it is for use while fishing, hunting or trapping and you have a valid license to fish, hunt or trap issued pursuant to section 11-0713 of the New York Environmental Conservation Law (See Penal Law § 265.20(a)(6).

Although not stated in the statute, in order to be convicted in New York of illegally possessing a switchblade knife, you must “knowingly” possess the knife (See Model Jury Charge for Criminal Possession of a Weapon in the Fourth Degree (CJI 2d N.Y. Penal Law § 265.01(1); People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637).

ITS ILLEGAL TO SELL USED AIRBAGS IN NEW YORK

January 31, 2009 | Tilem & Associates

In New York and elsewhere, it’s common for brake parts to be replaced with rebuilt parts. For example, it’s common for garages to install rebuilt brake calipers, brake pads and shoes, master cylinders and power brake boosters. Furthermore, when repairing or maintaining brakes on trucks, its also common to use rebuilt air compressors and brake valves. Therefore, the most important system on any vehicle, the braking system, is routinely repaired and maintained with re-built or refurbished parts. Many times, the parts to be rebuilt (the “cores”) are obtained from salvage yards (junkyards).

However, the New York State Legislature, in its infinite wisdom, has found it necessary to bar the installation of salvaged airbag systems (called inflatable restraint systems under New York law). Effective March 1, 1999, airbag systems in New York may only be replaced with new systems or salvaged systems which have been certified pursuant to standards set by a nationally recognized testing, engineering and research organization (See VTL § 398-d(6)(e) & 415-c (2)).

Here’s the problem with this law; leave it to the New York State Legislature to pass a law requiring salvaged airbag systems to meet standards set by a nationally recognized testing, engineering and research organization when no such standards or organization to develop such standards exist. And, leave it to the New York Court of Appeals to hold that the failure of the Department of Motor Vehicles to develop such standards did not invalidate the law. N.Y.A.A.D., Inc. v. State of New York, 1 N.Y.3d 245, 771 N.Y.S.2d 54 (N.Y. 2003)

PRISON WARDENS, PROBATION OFFICERS, FEDERAL JUDGES AND LAW ENFORCEMENT PERSONNEL OPPOSE MANDATORY MINIMUMS FOR DRUG OFFENSES

January 26, 2009 | Tilem & Associates

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.”