I’m looking to buy some Percs, Zanz, Blue Bus or White Girl Study Buddies. Where can I get some Blue Bars, Oxy or something more “exciting” like Ski, Tina or M30? Whether you want to buy or sell Ritalin, Adderall, Xanax, Heroin, Cocaine, Suboxone, Ecstasy, Percocet, Crystal Meth, or just about any other prescription drug, controlled substance or narcotic, Craigslist and other online forums including Reddit can not merely point you in the right direction, but serve as your online pharmacy of substance abuse. As sneaky as Craigslist pharmacists think they may be by placing “no law enforcement” or “I’m not a cop” in their advertisement, the posts are as brazen as they are inviting to law enforcement and prosecutors.
As a criminal defense lawyer representing clients in drug crimes involving unlawful prescription drug sales and possession, its is my duty to represent a client to the fullest of my ability regardless of the accused conduct. After all, the burden always remains on the prosecution to prove a case beyond a reasonable doubt. Every accused has due process rights that, regardless of the allegation, must never be violated. However, know that it is not my job to also serve as your parent and give you a proverbial pat on the back. An apologist for illegal conduct I am not. While the best defense is abstaining from using, buying, distributing or selling drugs and controlled substances, knowledge of the New York Penal Law, even after the fact, can assist in identifying and implementing the strongest defense to avoid the full force of New York’s criminal justice system.
Other than unlawfully selling 25 grams or less of Marijuana pursuant to Fourth Degree Criminal Sale of Marijuana, New York Penal Law 221.40, any and all sales of illegal drugs is a felony offense. Starting on the relative low end as class “D” felonies and on the high end of a class “B” felony, Criminal Sale of a Controlled Substance crimes outside those involving significant weight, are punishable by indeterminate prison sentences up to nine years. For Example, New York Penal Law 220.31, Fifth Degree Criminal Sale of a Controlled Substance, may be the least harsh drug sale crime in New York, but a conviction carries a sentence of 1-2.5 years in prison followed by 1 year post release supervision. More significant, New York Penal Law 220.34 and New York Penal Law 220.39, Fourth and Third Degree Criminal Sale of a Controlled Substance, have associated sentences of 1-5.5 years in prison followed by 1-2 years post release supervision and 1-9 years (2-9 if school grounds or sale to a child) in prison followed by 1-2 years post release supervision respectively for any person without a criminal record.
Although the subject of a different blog entry relating to felony Criminal Possession of a Controlled Substance crimes including New York Penal Law sections 220.06, 220.09 and 2201.16, Fifth through Third Degree Criminal Possession of a Controlled Substance, know that if prosecutors and the police can establish certain weight minimums or merely an intent to sell, you can face the same felony exposure without being charged with a sale. Because most recreational buyers are not purchasing Ritalin, Adderall, Xanax, Heroin, Cocaine, Suboxone, Ecstasy, Percocet, Crystal Meth or other drugs in weight or to turn around and sell the same, a buyer’s exposure may (“may” being the operative word) be far less. Simple and personal use possession is a violation of New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. This crime is no less permanent, but is a misdemeanor with a possible one year jail sentence. What may compound matters for the alleged misdemeanor possessor is that the District Attorney may want that person to allocute against a buyer before offering a plea or the PL 220.03 case may track the more serious felony if prosecutors may seek the assistance of purchaser in a larger case. Even if atypical, finding yourself in such a situation is unenviable.
As referenced in the title of this entry, whether you are buying or selling Study Aids, Focus Pills, Dog Food, Berries, Tina, Molly, M30 or Percs, law enforcement knows whats’ up. Eventually they will coming either literally or proverbially “knockin’ at your door.” Should you find yourself under arrest, do yourself a favor. Don’t aggravate the legal situation you find yourself facing. You have rights. Exercise them.
To learn about New York drug crimes and laws, review the links here or search this blog. Whether you received a NYC Desk Appearance Ticket or are the target of a long term investigation tied to CraigsList or otherwise, educate yourself on the law. No matter if you are selling your own prescription drugs on the street or steering buyers through Reddit, the consequences are potentially life altering. Irrespective if you are moving party drugs at a Phish concert at Madison Square Garden or the Electric Zoo Festival on Randall’s Island, open your eyes. A criminal conviction lasts longer than the blackest permanent Sharpie marker.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in drug investigations, arrests and trials throughout New York City and the Hudson Valley.
Whether you are at the Electric Zoo Festival on New York’s Randall Island, rolling with Phish at Manhattan’s Madison Square Garden, or you are merely out and about in New York City, Westchester County, Rockland County, or anywhere in the State, if you possess or sell MDMA, Molly or Ecstasy you potentially face an arrest for either a misdemeanor or felony crime. As your criminal lawyer will explain, mere possession of Ecstasy, even one pill, violates New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. Depending on the quantity in your possession and whether you have the subjective intent to sell the Ecstasy, you could also face felony crimes including Third Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.16. Complicating matters, when you actually sell Molly, MDMA or Ecstasy in New York, the crime you face is by default a felony. Assuming the weight of the controlled substance is less than one gram, meaning just one pill, then you would be charged with New York Penal Law 220.31, Fifth Degree Criminal Sale of a Controlled Substance. If the weight of the Ecstasy, MDMA or Molly exceeds one gram, then the applicable arrest charge is New York Penal Law 220.39 assuming this sale did not occur on school grounds. This crime is Third Degree Criminal Sale of a Controlled Substance. When the weights exceed those here and as outlined in the New York Penal Law, the criminal offenses for criminal possession or sale are significantly more serious.
Because of the above exposure, any arrest, whether by Desk Appearance Ticket or felony complaint, requires immediate and professional attention. Sometimes, investigation and advocacy from the onset of an arrest can provide tremendous benefits as the matter makes its way through the criminal justice system. Fortunately for three recent clients of Crotty Saland PC, despite their arrests for selling Molly to undercover police officers at the Electric Zoo, they took immediate action to retain a criminal lawyer and fight their respective arrests for PL 220.31 head on as they worked their way towards an ultimate dismissal on the merits.
Our clients, three young foreign nationals between the ages of 18 and 23, were enjoying themselves at the Electric Zoo Festival. While there is no dispute that using drugs or looking to purchase drugs is neither responsible nor reasoned, some people learn this lesson the hard way. In this particular case, our clients were approached by plain clothes police officers with the NYPD after the police thought our clients were looking for drugs. Offered $20 by one of the undercover officers to buy drugs, one of our client’s rejected the money. Although one of our clients indicated the party was looking for Molly, all of our clients indicated they did not possess any MDMA nor did they sell Ecstasy. Not accepting that answer, the officer again gave the $20 to one of our clients to help the office find drugs. Ultimately “acquiescing,” for lack of a better term, our clients went on their way looking for drugs for themselves. At some point, our clients, and a separately charged friend, met a person selling MDMA. This person sold drugs to the separately charged individual and this young person then possessed some Molly. Shortly thereafter, the undercover police officers, who were watching and standing back from the transaction jumped in and arrested the seller, separately charged friend who possessed drugs and our clients. Charged with Fifth Degree Criminal Sale of a Controlled Substance, the police believed that our clients were involved in selling drugs and, because the officer had given one of our clients money and asked that client to procure MDMA, the entire party was arrested as acting in concert as accomplices.
Without going into all the details, after our clients’ first appearance, the court graciously agreed with our request that our clients not be mandated to return on the subsequent court date barring a plea or indictment. Not only did we argue that our clients did not offer to sell any drug nor possess any drug, it was their objective to solely to secure Molly, Ecstasy and MDMA for their own personal use. Despite their efforts, only the separately charged friend was successful in this endeavor. Although one person did successfully buy what that person believed to be Molly, there was no “meeting of the minds” to sell the same. Equally important, the one client who was given $20 by the undercover police officer in our opinion, was entrapped by the police. Again, and regardless, our clients never sold, or directly dealt with the separately charged “real” seller.
After conducting their investigation, the District Attorney’s Office dismissed each of the cases. While no doubt a good lesson and message about how even being associated with drug possession or sale is dangerous, our clients were vindicated. Young, reckless and immature may be no way to live one’s life, but criminal conduct it is not. Fortunately, our criminal lawyers secured a dismissal and with a little “parental love” and advice, coupled with this frightening experience, these young people should be on a different trajectory going forward.
To learn more about New York drug and narcotic crimes, including NY PL 220.03, NY PL 220.31, NY PL 220.39 and NY PL 2201.16, review this blog as well as the links here and below.
Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland PC represent clients throughout New York City and the Hudson Valley.
The prescription drug epidemic may not be as rampant as the crack and cocaine abuse in the 80s and 90s, but it is no less harmful and frightening. Whether a drug is Oxycodone, Xanax, Hydrocodone, Adderall or some other prescribed controlled substance or narcotic, the potential harm to the abuser, his or her family and the community-at-large is great. Because of this, law enforcement from the NYPD in New York City to smaller police departments, as well as the District Attorneys prosecuting crime in the associated jurisdiction, have sought to disrupt the illegal trade and sale of these drugs. That is where the crime of Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law Article 178, becomes part of law enforcement’s arsenal to combat the illegal sale, possession and trade of prescription drugs.
This blog entry will identify and address the differences between the varying degrees of Criminal Diversion of Prescription Medication – NY PL 178.10, NY PL 178.15, NY PL 178.20, NY PL 178.25 – and potential punishment associated with each crime.
The lease serious offense, Fourth Degree Criminal Diversion of Prescription Medication, is a class “A” misdemeanor. This means that a conviction for New York Penal Law 178.10 will land a defendant in an orange jumpsuit for up to one year. If you commit a “criminal diversion act,” regardless of how much or what you receive in exchange, you have committed this crime. A act that qualifies as “criminal diversion” would include the sale of a prescription to someone who the seller knows is not in need of the medication or has reasonable grounds to believe the recipient is not in need of the particular drug. Nothing prevents the unlawful possessor of the illegal drug to also be charged with Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03.
The other degrees of Criminal Diversion of Prescription Medication range from class “E” to “C” felonies. These crimes are elevated based on the value of the exchanged benefit. If the benefit is in excess of $1,000.00, then the crime is Third Degree Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law 178.15. If the value is more than $3,000.00, then the offense is Second Degree Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law 178.20. This crime is a class “D” felony. The most serious of these prescription drug offenses is First Degree Criminal Diversion of Prescription Medication and Prescriptions, New York Penal Law 178.25. This last offense is a class “C” felony and involves the benefit exceeding $50,000.00. Class “E,” “C,” and “D” felonies are punishable by as much as four, seven and fifteen years respectively.
Remember, nothing in the law prevents the provider of illegal prescriptions or the receiver of the same from being charged with far more serious New York drug crimes or, where there is more nefarious organized illegality, Money Laundering and Enterprise Corruption.
Regardless of the crime or crimes you may face that involve controlled substances and prescription medications, know that education about the law is fundamental. Certainly, having a full grasp of New York crimes can help you avoid prosecution and running afoul of the law, but it can also help you and your criminal defense attorney to identify and implement the best defense to a Criminal Diversion of Prescription Medication arrest, indictment or trial.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The two founding criminal defense lawyers at Crotty Saland PC represent clients in drug related crimes – both street and prescription – throughout the New York City and Hudson Valley region.
The state of the New York Penal and Criminal Procedure laws as practiced in New York courts is overly restrictive and burdensome. What says you? According to whom? The state of the New York Penal Law and Criminal Procedure Law as practiced in New York courts is overly lenient and broad!
The beauty of asking two different people the same question, especially in New York, is that you will get two different answers. Irrespective of one’s personal view, any spectator or active participant in the criminal justice system will likely tell you that on any given day you can likely see both of these perspectives play out in courtrooms from New York City to Buffalo. Without addressing the validity of the above conclusions or what might happen from day to day, there is one area of law that, right or wrong, that is stacked against the accused. Merit and reasoning aside, law enforcement can charge you, the accused, with the most minimal amount of evidence and corroboration while prosecutors can draft a legally sufficient complaint or information charging you with a drug crime in New York such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, based on nominal evidence. How can law enforcement sustain a charge of PL 220.03 so easily you ask? Because if the police say you possessed drugs and explain their reasoning in boilerplate language as to why they believe it’s a controlled substance, then barring any other infirmities the information (complaint) against you is legally sufficient and will likely overcome a motion to dismiss.
Whether its cocaine, Adderall, MDMA, ecstasy, heroin, suboxone, OxyContin, or any other controlled substance, New York law does not require any type of field test or laboratory analysis at the first stages of prosecution to confirm the substance is in fact what the police allege it to be. That’s right. Drafted correctly, if law enforcement merely alleges that the substance is drug X and the police officer or detective identify it as such based on their training and experience, the very low bar is likely surmounted to sustain a legally sufficient complaint. Throw in that the packaging is consistent with this type of controlled substance, the smell is indicative of drug X, and some other characteristics, your arraignment court will find that legally sufficiency has been met. Simply, if and when the case goes to trial then the District Attorney can provide a chemical analysis to overcome the proof beyond a reasonable doubt burden. While it may be of little consolation to a person who has “beat drugs,” or is adamant that the drugs in their possession are not what the police alleged, the “training and experience” conclusion by law enforcement, as long as articulated properly, can keep an accused wrapped up in the criminal justice system until if and when a laboratory analysis controverts law enforcement’s conclusion.
While People v. Kalin, 12 NY 3d 225 (2009) established the rule that observations and conclusions based on training and experience are enough to establish a prima facie case, know that all hope is not lost. In fact, far from it. Yes, the District Attorney will ultimately need a laboratory analysis of the alleged cocaine, heroin, etc., but whenever property is taken from your person or in an area where you have both dominion and control, your attorney will likely seek a Dunaway and Mapp Hearing to both challenge the probable cause of your arrest and the legality of the search and seizure. Even if this angle does not seem like a viable defense, first time offenders in New York can potentially avoid a criminal or even on-criminal conviction with the right advocacy. Simply, there are numerous ways to attack a criminal case in addition to whether the complaint against you is legally sufficient.
At bottom, the legal sufficiency standard is quite a low one. In New York, the law is clear that with an explanation of their training and experience, law enforcement can meet their burden without a chemical analysis. Know that as upsetting as that may be to you, as an accused, your counsel can make a demand for the analysis and nothing prevents him or her from challenging the case in other areas or, when necessary, mitigating your conduct to lessen your exposure. Will you beat the case in its entirety? Will you pursue a different course of action? Ultimately, once armed with an understanding of New York criminal procedure and law, you and your attorney can implement the best and strongest defense.
To learn more about New York drug crimes, including misdemeanor Seventh Degree Criminal Possession of a Controlled Substance, review the links above.
Crotty Saland PC is a New York criminal defense law firm founded by former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland PC represent clients in all stages of criminal litigation.
Though the topic of drug crimes often conjures thoughts of sales, trafficking, or even mere possession of illegal substances, there is another important category of offense that is regularly prosecuted in New York courts. In fact, you may have been arrested an issued a Desk Appearance Ticket, or DAT, for this crime in addition to possessing a controlled substance or marijuana. What is this offense you ask? Second Degree Criminally Using Drug Paraphernalia, New York Penal Law 220.50.
Second Degree Criminally Using Drug Paraphernalia is classified as an “A” misdemeanor and is capable of producing serious consequences for those convicted of doing so, but understanding the law and the statute is your first step in protecting your future.
You’ve taken responsibility and paid your dues. It now begs the question. Can my misdemeanor conviction be sealed? Can my drug arrest be expunged? Is there a statute in New York to clear my criminal record? Its been years, even decades, since my arrest, conviction and sentencing for Seventh Degree Criminal Possession of a Controlled Substance in New York. How do I now get a conviction for New York Penal Law 220.03 vacated, cleaned, washed away, expunged, sealed or any other relief to keep my past from destroying my future? As you can discuss with your criminal defense attorney and conviction sealing lawyer, whether you were convicted by a plea of guilty or by a jury of your peers, simple possession of cocaine, crack-cocaine, heroin, or any other controlled substance can be sealed from your record with a motion to your sentencing court in accordance with New York Criminal Procedure Law 160.59.
As straight forward as the New York Penal Law can get, PL 220.03 is violated when you knowingly and unlawfully posses a controlled substance. While you may not remember how much cocaine or heroin you had, for example, its of little consequence assuming it was in violation of the misdemeanor Seventh Degree Criminal Possession of a Controlled Substance crime. That, for starters, is the good news. However, in order for your conviction of PL 220.03 to be eligible for sealing there are other mandatory requirements. Even if you satisfy these necessary rules, what does it actually mean for you in a practical sense?
One of the first steps you must take is to answer the following in the affirmative. Do you have no more than two total convictions? Are you completely free from the criminal justice system now without any pending criminal case? Was your conviction for NY PL 220.03 at least ten years ago? Assuming you have met these requirements, in order for you New York sealing attorney to draft a compelling application for sealing, what benefit is there to society and the community to provide you this relief? What have you been doing with your life? Are you still abusing narcotics and controlled substances? Simply, why should the court that you pleaded before now, all these years later, seal your case? Before answering these questions, its imperative that you recognize not only will the District Attorney have 45 days to respond to your motion or application for sealing, but CPL 160.59 mandates a hearing in the event there is an object or challenge. An easy lift and task this is not.
For the purpose of this blog entry on sealing arrests and convictions for Seventh Degree Criminal Possession of a Controlled Substance, what does sealing mean? For that matter, does sealing equate to expungement? Is CPL 160.59 New York’s expungement law too? A little out of order, the first response is that New York will now seal up to two criminal convictions, but New York still does not expunge convictions. How is this different? While an expungement erases your conviction, sealing hides it. This hiding, if it is the proper term, is extremely broad. Yes, law enforcement will be able to access your conviction for PL 220.03 and it can be used against you in a later criminal proceeding, but for the most part your criminal record will be stripped away from both public and private view. Fearful of that criminal background check exposing your misdemeanor drug possession conviction for cocaine? The courts and criminal justice agency will no longer be openly sharing this information. You read that right. What’s even better, New York businesses will no longer be allowed to ask you or require that you share any information about a sealed criminal conviction. It doesn’t end there. Employers cannot take an adverse position against should they learn about a conviction that is now sealed. This is a potential boon to you, a person convicted of possessing drugs and controlled substances for personal use.
It should go without saying that what is contained in a roughly 750 word blog entry does not even scratch the surface on sealing criminal convictions including misdemeanors for drug possession. There are certain documents and extensive information your sealing attorney must supply the court in their motion to seal your criminal conviction. There is work to be done and potentially a hearing where a judge can deny you what you have been waiting all these years to achieve – a life where your criminal past is minimized and tucked away to best allow your family and career blossom.
Take the time to educate yourself. Learn about New York’s “expungement” and misdemeanor drug sealing statute at Crotty Saland PC’s New York conviction sealing information page. Confer with your sealing lawyer to put forth the strongest motion for sealing. You will only get one chance to rid yourself of your past.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York conviction sealing lawyers at Crotty Saland PC represents clients throughout the State of New York from Manhattan to Buffalo and everywhere to the left, right and in between.
The types of drugs that routinely flow through New York City and throughout other New York municipalities range from unlawfully possessed prescription drugs such as Oxy and Adderall to the more common cocaine, heroin, MDAM, Ecstasy and Molly. The law is generally clear and a criminal defense attorney you need not when determining what controlled substances you can (or cannot) possess. For that matter, you neither need a drug lawyer nor your mother to advise you that you can’t have any of these narcotics barring a prescription (or at all) unless your goal is trying to violate a New York drug crime.
You may enjoy getting hopped up, rolling, taking a bump or just getting annihilated and, by all means, that is your decision. It is not my job, as a criminal lawyer, to be your father and lecture you on the ills of drug use and abuse. Its my job to help you when you call me panicked after your arrest. That said, before doing so, just hear me out. Know that there are very real consequences to your actions well beyond those that may land you in handcuffs and before a judge.
Brief pseudo-lecture aside, the purpose of this blog entry is not to address the direct and collateral consequences to drug use and arrests in New York, but to make it clear how low the threshold is for prosecutors to proceed on criminal charges when you are accused of violating New York Penal Law 220.03, Seventh Degree Criminal Possession of a Controlled Substance. In fact, as this blog will make clear, neither Assistant District Attorneys nor police officers need to actually test the drug in any capacity to draft a legally sufficient complaint charging you with this drug crime. What does this mean to you? The law can take you right past Go and directly to Jail in the game of Monopoly that has unfortunately become your life.
In People v. Saveljevs, 2017 NY Slip Op 50857 (2nd Dept. 2017), the NYPD arrested the defendant for PL 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree. No, the defendant did not have cocaine in a baggie nor was he busted at a club with tabs of some other designer drug in his pocket. Pills? None of those either. Instead, the police accused the defendant dropping a hypodermic needle to the ground where they recovered it and observed what they believed to be, based on their training and experience, heroin within that needle. Field test? No. Laboratory analysis? Nope. Simply, without anything beyond their observations of a substance within the hypodermic needle – no test, no admissions, no smell….nadda’ – the arresting officer signed off on a complaint alleging a violation of the law.
Obviously, based on the title of this blog you can likely take an educated guess and figure out that despite what was lacking, the court found the complaint (at this point called an “information”) legally sufficient. Why? The officer articulated his experience in making arrests involving heroin in hypodermic needles, his general training and experience, and his familiarity with the packaging of heroin.
Despite losing this sufficiency battle, keep your chin up. Legal sufficiency is not proof beyond a reasonable doubt. In the event that the accused, or any alleged wrongdoer, is confident that the drugs in question are not in fact drugs, if and when the prosecution proceeded to trial they would be required to produce a chemical test to corroborate whether the substance alleged as drugs was in fact the same drug the police claimed. Even before then, there are legal hurdles such as search and seizure issues that law enforcement must overcome.
Outside of the obvious lesson of don’t do drugs, and certainly not in public, know that the standard for legal sufficiency is fairly low. Now you know…and, as a wise cartoon character once said, “Knowing is half the battle.”
To learn more about New York drug crimes, including PL 220.03, follow the links contained here and search the blogs and websites listed below.
A New York criminal defense law firm located in lower Manhattan, the New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients throughout the New York City, Hudson Valley region and many other municipalities.
During the day you are a lawyer, work in finance, a licensed real estate broker, or a school teacher. Maybe you’re a stay-at-home mom or you’re just figuring out what the heck you want to do with your life with your BA in History from Generic State University. Reliving your glory days in college pretending the babysitter isn’t at home with your kids or just trying your hardest to ignore the fact that you have a mortgage or rent payment coming up after the encore, what could be better than getting lost in the moment to Phish’s “Fluffhead” and “Harry Hood?” The real question, however, is not what could be better, but what could be worse? The answer? An arrest for Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03.
On its face, going to see Phish certainly could be a release and even a religious experience, but you’re not a reckless college kid anymore (or maybe you are) and you weren’t fooling anyone “hiding” a baggie of cocaine, Molly, MDMA, ecstasy, marijuana or any other drug in your sock. It’s just like telling your parents you only had two beers. You didn’t. They knew that.
There are multiple standards throughout the different levels, stages and proceedings in a criminal case. For example, probable cause for an arrest in New York is far less than the proof beyond a reasonable doubt needed by the prosecution to secure a conviction at trial. Since the relatively recent (in terms of the history of the New York Penal Law and New York Criminal Procedure Law) acceptance that a laboratory analysis or field test is not needed at the initial pleading stage to establish a sufficient complaint in a criminal court for drug possession, there have been many legal challenges by those defendants charged with Seventh Degree Criminal Possession of a Controlled Substance.
New York Penal Law 220.03 makes it a crime to knowingly possess a controlled substance. Sounds fairly straight forward, but when you see your judge at our arraignment, what must the police officer alleged to support his position? Training and experience in identifying drugs? The packaging of the controlled substance? What about if the police officer hits up the internet and lands on a page such as Drugs.Com? Can law enforcement merely reference an online resource in concluding that you possess a particular drug without some sort of chemical test or an elaboration of his or her experience in identifying drugs? Read below for the answer.
In People v. Spardlin, NY Slip Op. 27173 (Ithaca City Court 2017), the police arrested and charged the defendant with NY PL 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree. In pertinent part, the complaint stated that the defendant possessed nine white pills marked with “M 36”. After referring to Drugs.Com, the officer identified the drugs as a controlled substance in violation of PL 220.03. Ultimately, upon a motion to dismiss, the defendant argued that the officer’s basis of identifying the unlawful drug was unreliable. Without relying on training or experience, a lab or a field test, asserting the drug was in fact a particular drug was merely a conclusion.
In ultimately denying the motion to dismiss, the court first (actually it was not first, but helpful in this analysis) took judicial notice as to the reliability of Drugs.Com. Then, the judge turned to the wording in the complaint. There, the court noted that the officer described the pill’s color as well as the wording and text imprinted upon them. Looking to the logic in People v. Kalin, 12 NY3d 225 (2009), the judge determined that the officer described the drug adequately, relied not on his training or experience, but an accepted resource to identify drugs, and all of this was based on the officer’s own observations. Therefore, the complaint was legally sufficient.
There are very few decisions where Drugs.Com, or similar website, was used as a resource to establish legal sufficiency in a complaint. It is likely at some point a higher court will rule on this issue. Outside of Ithaca, New York, this decision is by all means a worthy one, but not controlling. However, be warned. The fairly liberal interpretation courts utilize when reviewing legal or facial insufficiency may be getting much more broad in the very near future. If nothing else, a lab test, field test, or even recitation of an officer’s training and experience, may not be as critical as it was in past arrests and criminal cases.
To learn about the ever changing legal, procedural and defenses involving drug, controlled substance and narcotics crime, please review this blog and CrottySaland.Com.
The New York criminal lawyers and former Manhattan Assistant District Attorneys at Crotty Saland PC represent clients investigated for and charged with all controlled substance crimes found in Article 220 of the New York Penal Law.
Although not exclusive to drug and marijuana crimes, otherwise fairly simple offenses such as Seventh Degree Criminal Possession of a Controlled Substance, New York Penal Law 220.03, and Fifth Degree Criminal Possession of Marihuana, New York Penal Law 221.10, are often complicated when the police not only arrest a person for possessing heroin, molly, MDMA, adderall, oxy, cocaine, ecstasy, marijuana or any other drug, but also charge that person with an additional crime when he or she attempts to hide or dispose it before the police can get their respective hands on controlled substance. In these circumstances the NYPD or other local police department often charges the accused not only with the PL 220.03 or PL 221.10, for example, but also with either Tampering with Physical Evidence or Attempted Tampering with Physical Evidence, a class “E” felony and class “A” misdemeanor respectively. While the latter offense, New York Penal Law 215.40, is punishable by as much as four years in prison, an attempt to commit the same crime is “only” punishable by up to one year in jail.
Because both the police and prosecutors often charge a variation of PL 215.40 whether by Desk Appearance Ticket or Central Booking processing, a charge of Tampering with Physical Evidence is far from atypical. However, an arrest and charge does not automatically equate to proof beyond a reasonable doubt if at all. This blog entry will address the fairly common scenario where an accused merely throws to the ground, drops or discards the physical evidence in question and whether that rises to the level of either a completed or attempted Tampering with Physical Evidence crime.
Tampering with Physical Evidence, New York Penal Law 215.40, occurs in two distinct manners. For the purpose of this New York criminal lawyer blog entry we will solely address the second subsection of this felony. A person is guilty of PL 215.40(2) when that person believes that certain physical evidence is about to be used in an official proceeding or prospective one and with the intent to prevent its production or use that person suppresses it by concealing, altering or destroying the evidence or by intimidating or deceiving any other person to prevent its production or use.
In People v. Parker, 2017 NY Slip Op 02208, (4th Dept. 2017), a jury convicted the defendant of Attempted Tampering with Physical Evidence after the evidence established the defendant threw bags of cocaine to the floor in the store where he was arrested. After deciding in favor of the defendant and modifying the conviction from the completed crime of PL 215.40(2) to the attempted offense, the Appellate Division Fourth Department held that dropping the bags with cocaine in plain view of the arresting officers was not the same as actually concealing those bags. While the crime of Tampering with Physical Evidence does not mandate that the evidence in question ultimately be suppressed, there must be an actual act of concealment.
While every set of facts and accompanying evidence must be examined in the context of a particular criminal case, where a person drops marijuana to the ground or a bag of some other narcotic, there may not be a felony crime, but a lesser misdemeanor. Certainly, the police might charge the more serious offense, but that does not mean it is the legal or proper one. If the accused throws the same contraband into a drain, waterway or elsewhere thereby preventing its recovery or apprehension then it is more likely the completed felony will have a solid foundation for prosecution.
Irrespective of the underlying offense you face and the associated crime of Tampering with Physical Evidence, it is incumbent upon you and your attorney to determine whether or not the particular charge is a “reach” to merely enhance the level or magnitude of crime that is the actual basis for your arrest or one that has a legitimate legal foundation. If a motion to dismiss is the means by which you challenge the offense or you and your criminal lawyer pursue a different route, having a basic understanding of PL 215.40 is critical irrespective of your defense.
To read more more about any of the crimes listed here including the NYC Desk Appearance Ticket process, please follow the links found throughout this blog or search the sites listed below.
Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys at Crotty Saland PC represent clients in misdemeanor and felony arrests throughout the New York City region.