New York Criminal Attorney Blog

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.

New York Criminal Defense Law Firm Tilem & Campbell Announces the Launch of a New Media Page

February 26, 2009 | Tilem & Associates

In our continuing effort to educate the public about important criminal issues and to keep our clients, friends and the public better informed about the cases Tilem & Campbell is involved with, we are pleased to announce the launch of our new “Media Page“. The page can be accessed by either one of two methods from our Home Page; either by clicking on any of the video icons along the left hand side of the home page or by pulling down the the “About Us” drop down menu along the top of the Home Page and clicking “Media”.

This page will be updated frequently and will contain all television appearances by any of the lawyers at Tilem & Campbell and perhaps in the future print media as well.

If you have any questions or comments, or would like to schedule a free consultation on any criminal law issue, please contact us by E-Mail or telephone at 877-377-8666.

NEW YORK SPEEDING TICKET – CAN ONE EXCEED THE SPEED LIMIT TO AVOID A COLLISION?

February 23, 2009 | Tilem & Associates

Experienced New York traffic ticket lawyers know that generally, there are two possible defenses when one is charged with speeding in New York: (1) “I wasn’t speeding”; or (2) “I was speeding but I have an excuse”. (Keep in mind however, there is a third strategy which is not a defense and that is, “I was speeding but the officer can’t prove it”. The “they can’t prove it” strategy will be the subject of future blogs).

With regard to excuses, motorists issued speeding tickets come up with any number of excuses to justify why they were exceeding the speed limit. Generally, unless you have a verifiable pregnant woman in the car or an assailant with a gun to your head, you have no legal excuse. However, at least one court has held that exceeding the speed limit to avoid a suddenly slowing vehicle constitutes a sufficient “emergency” to absolve the motorist of a speeding charge.

In People v. Cataldo, 65 Misc.2d 286, 316 N.Y.S.2d 873, a 1970 case out of the Suffolk County First District Court, J. Colaneri found a motorist not guilty of speeding where the evidence showed that the motorist accelerated to avoid a vehicle that was “rapidly slowing down”. In so ruling, J. Colaneri relied upon the “emergency” justification defense found in Penal Law sec. 35.05(2) which states, in sum and substance, that criminal conduct in not criminal when it is necessary to avoid a public or private injury which is about to occur through no fault of the actor (i.e. the defendant did not cause the emergency situation). In Cataldo, J. Coleneri found that the defendant/motorist was justified in speeding to avoid colliding with the “rapidly slowing” vehicle.

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).

YONKERS CITY COURT IN THE SPOTLIGHT

February 6, 2009 | Tilem & Associates

The City of Yonkers, New York is the largest, and perhaps most diverse city in all of Westchester County. Located at 100 South Broadway, the Yonkers City Court is a bustling Court that reflects the dynamic of the City of Yonkers. As an attorney based in White Plains, the Yonkers City Court is one of the Courts that has become a home away from home. The Court handles everything from the most serious unindicted criminal felonies (indicted felonies are transferred to the Westchester County Courthouse) to less serious misdemeanor criminal cases and a very busy traffic calendar to landlord-tenant cases and civil cases involving disputes of $15,000.

With a population of about 200,000 people, Yonkers is the fourth largest city in all of New York State. Located just north of the Bronx it is the literal gateway to New York City with major highways such as the New York State Thruway (I-87), the Sprain brook Expressway, the Cross County Parkway, The saw Mill River Parkway and Bronx River Parkway, all running through Yonkers. Needless to say Yonkers speeding tickets are the bread and butter of any traffic ticket lawyer in Westchester County and all types of traffic infractions and traffic misdemeanors pour through the Yonkers Courthouse.

With the Cross County Mall, Yonkers Raceway which now has a casino called Empire City, shopping areas throughout downtown and Central Avenue, numerous residential neighborhoods and industrial centers other crimes abound including shoplifting, drugs, grand larceny, guns, robbery, assault and domestic violence. Despite the volume, however, the Court runs well, moves fast and in many ways is a model of efficiency.