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Articles Posted in NARCOTICS

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.

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.

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

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

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