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Articles Posted in NARCOTICS

In either a New York drug-possession case or a New York Gun Possession case seeking suppression of the contraband can often be a defendant’s best defense.  Earlier this month, a state appellate court issued an opinion in which the court reversed the defendant’s drug conviction, finding that the police did not have probable cause to arrest him. The case illustrates how police officers attempt to justify stopping a person based on nothing more than their subjective belief that the person is engaged in suspicious activity.

According to the court’s opinion, two police officers were on a routine patrol when they saw the defendant running on the sidewalk. The defendant then suddenly ran across the street, requiring several cars to slow down. The police officers decided to stop the defendant and issue a summons for disorderly conduct. As the police were approaching the defendant, they noticed he was clutching something in his pocket. Believing that the defendant had a weapon, the officers drew their weapons and ordered the defendant to place his hands in the air. The defendant complied and was frisked. The police found a knife and five small packets of cocaine.

The defendant filed a motion to suppress the drugs that were recovered as a result of the search, arguing that the police officers had no reason to stop him and issue a summons for disorderly conduct.

Earlier this month, a state appellate court issued an opinion in a New York drug possession case, reversing a lower court’s decision to deny the defendant’s motion to suppress and holding that the prosecution failed to meet its burden to establish that the defendant’s arrest was legal. In so holding, the court discussed when the prosecution must establish the reliability of information that was given to police.

The Facts of the Case

The defendant was pulled over for two minor traffic offenses by two Syracuse police officers. During the traffic stop, the officers received information that the defendant had an outstanding warrant out of Cortland. One of the officers then contacted the 911 Center, which verified that the defendant had an active warrant. The 911 Center then requested that the police officers detain the defendant until one of their officers could take him into custody.

Lawyers experienced with drug cases often seek to suppress the drugs recovered by the police based upon a violation of the client’s right to not be subjected to unreasonable searches.  As a general matter, the Fourth Amendment to the United States Constitution, as well as Article I section 12 of the New York State Constitution, prohibit unreasonable searches and seizures. As a general matter, this means that police must obtain a search warrant prior to conducting a search of a person or their belongings. Even when a search warrant is obtained, however, the police must be able to show that there was probable cause of discovering some kind of criminal activity.

Given this background, someone who is arrested after a search that was based on a warrant still has the ability to challenge the search. Generally, these challenges claim that the warrant was issued on insufficient facts or that the search exceeded the scope of the warrant.

A recent New York drug possession case illustrates the type of analysis courts use when reviewing a search warrant.

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The highest state court in New York recently issued an opinion discussing whether the prosecution can offer evidence of a defendant’s prior drug sale conviction in their direct case in instances in which the defendant is asserting an agency-based defense that is supported entirely by parts of the prosecution’s case-in-chief.

The facts of the case are as follows. In 2010, a number of undercover police personnel were engaged in a so-called buy-and-bust operation in Manhattan. The officers observed the defendant, along with another person, walking for roughly 40 minutes. Shortly thereafter, one of the officers reported seeing the other individual provide the defendant with money, after which the defendant walked across the street and into a residential apartment complex. A few minutes later, the defendant returned to his companion outside the building and provided him with certain items. Later, these items were identified as envelopes of heroin.

The police initiated a stop of the defendant and his companion. The officers discovered a sum of money in the defendant’s pocket and the narcotics in his companion’s pocket.

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Tilem & Associates, won a major victory after a Judge in Nassau County ordered that all evidence be suppressed in a Marihuana and Patronizing a Prostitute case. The evidence that was suppressed included both written and oral confessions as well as about a pound of Marihuana, a scale, grinder, baggies for packaging and a large amount of cash (over $4000). All of the evidence was ordered suppressed by the Judge after two detectives testified at a suppression hearing held in February and the Judge questioned their credibility.

The Charges dated back to an incident that occurred back in January 2013 at a motel in Nassau County, Detectives were conducting surveillance on a motel room that they believed was being used by prostitutes. When a male entered the room and left about 20 minutes later he was stopped by the police and questioned about what happened inside the motel room. Police also claimed that they observed marijuana in plain view in his car. They got the male to take them back up to the motel room to identify the prostitutes and they got the male to consent to searches of his car and home and waive his Miranda warnings and then write out a written confession

Tilem & Associates principal, Peter H. Tilem handled the suppression hearing and cross examined the two detectives. Upon cross-examination many inconsistencies were revealed in the testimony of the two detectives and it was revealed for the first time that they likely forcibly stopped the male by grabbing his car keys from his hand with out any lawful justification. Mr. Tilem, successfully argued that if the initial stop of the male was unconstitutional then all evidence that was recovered after the stop, including all statements needed to be suppressed as the “fruit of the poisonous tree” a legal doctrine that requires evidence tainted by unlawful police conduct to be suppressed. In addition, Mr. Tilem cited the case of People v. DeBour which controls under what circumstances a police officer may stop, frisk, search and detain a person they encounter on the street.

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 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:

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

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.

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