Drugs and Narcotics

January 20, 2012

When Police Conduct a Post Arrest Search Without an Arrest: Challenging Illegal Searches in New York

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are “searched incident to your lawful arrest” where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple “nothing” case evolve into something so serious…

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

January 2, 2012

Arrested for Drug Possession in New York: Criminal Lawyer Analysis of Overzealous Police Searches

by Jeremy Saland

Getting caught with illegal drugs in New York can be a frightening affair and one which certainly requires the assistance of an experienced criminal lawyer. Whether in the Bronx, Manhattan, Queens or Brooklyn, Assistant District Attorneys and judges can (and often do) stick to the book. Sometimes defending yourself against a misdemeanor or felony charged of Criminal Possession of a Controlled Substance can seem like an uphill battle. If you had the drugs – heroin, cocaine, etc., on your person or in your car, then there is nothing you can do right? Well, not exactly. In fact, not at all. Remember that the New York Constitution has strict guidelines regarding the ways in which NYPD officers can obtain evidence. New York has adopted standards arguably at least equal to and if not more protective of individual liberty then the standards set by federal cases. In this blog post, through the examination of a recent Bronx criminal case- People v. Sincere Pinckney, 75334C-10, NYLJ 1202514446063, at *1 (Sup., BX, Decided September 9, 2011)- I will elucidate (great word, huh?) some of the basic framework for measuring the legality of the intrusiveness of a police action in New York. The case provides a great illustration of circumstances under which evidence will be suppressed because it was unlawfully obtained in violation of the NY Constitution and the 4th Amendment.

In People v. Sincere Pinckney, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree pursuant to VTL 511.1(a), Operating a Motor Vehicle Without a License pursuant to VTL 509.1, and Unlawful Possession of Marijuana pursuant to NY PL 221.05. It should be noted that in New York marijuana related offenses are specifically carved out from and identified as separate from Controlled Substances crimes (possession of cocaine or heroin, for example) found in Article 220. Unlawful Possession of Marijuana is actually not even a “crime,” (Criminal Possession of Marijuana is a crime) but rather a violation. Nonetheless, although Pinckney involves a marijuana charge, the standard for what constitutes an unreasonable police intrusion resulting in the suppression of evidence will apply to more serious contraband cases (e.g. possession of cocaine or ecstacy).

June 29, 2011

Voiding an Arrest in a New York Shoplifting, Weapon or Drug Case: NY CPL 170.55 & the ACD “Nullity”

by Jeremy Saland

Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a “Dis Con” could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one’s time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

May 29, 2011

New York Penal Law Sections 221.40 & 221:35: Misdemeanor Marijuana (Marihuana) Sales

by Jeremy Saland

Unlike selling drugs or a controlled substance such as cocaine or heroin (New York Penal Law 220.39), selling marijuana (marihuana) in New York carries a significantly less punishment. Pursuant to New York Penal Law section 221.40, Criminal Sale of Marijuana (Marihuana) in the Fourth Degree, a person is guilty of this crime if they knowingly and unlawfully sell marijuana. A fairly straight forward offense, Criminal Sale of Marijuana is an “A” misdemeanor punishable by up to one year in jail.

An interesting question is whether or not the weight of the marijuana is relevant to New York Penal Law 221.40. While weight of the marijuana is an element that must be proven beyond a reasonable doubt in felony marijuana sales, as long as the prosecution proves that the accused sold the marijuana for “consideration,” ie, money or for something in return, then weight does not matter. See People v. Childs, 40 A.D.3d 270 (1st Dept. 2007). Again, weight is relevant to felony sales, but as long as there was an exchange for consideration, weight has not impact on the charge of Criminal Sale of Marihuana in the Fourth Degree.

February 28, 2011

Warning to New York Teachers: Potential Career Ending Consequences for Criminal Convictions

by Jeremy Saland

The New York criminal lawyers and former Manhattan prosecutors at Saland Law PC have represented all types of professionals from teachers to physicians and lawyers to architects in criminal investigations and arrests. Our criminal attorneys have represented these professionals in arrests ranging from Petit Larceny Shoplifting (NY PL 155.25) and Theft of Services (NY PL 165.15) to Assault (NY PL 120.00) and felony Grand Larceny (NY PL 155.35). Because these professionals don’t merely have their criminal case to be concerned about, our New York criminal defense attorneys at Saland Law PC routinely discuss the collateral consequence of an arrest and conviction with these clients. Now, according to reports, there may be an additional and grave concern for teachers arrested or given a Desk Appearance Ticket for any criminal charge ranging from Criminal Possession of Stolen Property (NY PL 165.40) to Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03).

According to reports, a New York State Senator has proposed legislation that will have dire consequences for teachers convicted of any crime (misdemeanor or felony). Regardless of any of our personal beliefs on the value of the tenure system or whether we believe the United Federation of Teachers serves themselves or students first, the bill in the New York State Senate appears to give a mayor of New York City the ability to terminate teachers convicted of crimes. According to one report, there are in excess of 500 teachers that still hold their jobs despite the fact that they have been convicted of a crime. While I have not read the bill, reports appear to indicate that Mayor Bloomberg, and his successors, would have the ability to dismiss these and future teachers convicted of crimes.

January 29, 2011

First Arrest for Drug Possession in New York: Potential Scenarios & Collateral Consequences for NY PL 220.03 Arrests & Desk Appearance Tickets

by Jeremy Saland

While no two cases are the same, the New York criminal lawyers at Saland Law PC have extensive experience representing those accused of Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03). In fact, the founding partners at Saland Law PC have experience on both sides of the law. Prior to starting the firm, both of our founding New York criminal defense lawyers served as Assistant District Attorney’s in the Manhattan District Attorney’s Office where they prosecuted individuals for misdemeanor and felony drug possession and sale.

Whether you are arrested for possessing cocaine, heroin, crack, oxycodone or a “designer drug,” often times the police will issue a New York Desk Appearance Ticket to first time offenders charging them with NY PL 220.03. An “A” misdemeanor, this offense is punishable by up to one year in jail. In the event you are arrested and given a Desk Appearance Ticket in Manhattan for possessing a controlled substance, you will be required to appear at either 100 Centre Street or Midtown Community Court at 314 West 54th Street. Regardless, the charges are the same as if you had been arrested and held overnight to see a judge. Do not be under the impression that a Desk Appearance Ticket for possessing a controlled substance (NY PL 220.03) is not a serious matter. If you do not appear in court as required, a bench warrant will likely be issued for your arrest.

November 4, 2010

DA: Manhattan Pharmacist Arrested & Indicted After Defrauding Medicaid out of Nearly $2 Million

by Jeremy Saland

According to Manhattan District Attorney Cyrus Vance, Jr., this Medicaid bust may be just the tip of the prescription pad iceberg and that more arrests in other investigations are coming. Prosecutors allege that Patrick Alcindor, a pharmacist with Procare Pharmacy, located at 1728 Amsterdam Ave. in Washington Heights, over-billed Medicaid for more than $1.8 million between April 2009 and March 2010. In fact, prosecutors claim that during this sting operation, an undercover police officer gave Mr. Alcindor written prescriptions to be filled, but the undercover police officer got a fist full of dollars in instead. These prescriptions included medications such as Reyataz, Truvada, Prezista, Procrit, and Zyprexa. Instead of dispensing this medication, Mr. Alcindor allegedly dispensed cash to the undercover police officer as part of Mr. Alcindor’s alleged scheme to swindle Medicaid. Mr. Alcindor would then bill Medicaid as if he really filled the prescription for the drugs. It is claimed by law enforcement that another pharmacy worker was in on the scheme.

Mr. Alcindor is currently charged with numerous counts of Grand Larceny including Grand Larceny in the First Degree. Additionally, the indictment charged Mr. Alcindor with Criminal Diversion of Prescription Medication in the Fourth Degree. For whatever reason, prosecutors chose not to charge Mr. Alcindor with the crimes of Forgery, Criminal Possession of a Forged Instrument and Falsifying Business Records for his alleged conduct in completing and filing false documentation to obtain the money from Medicaid.

November 3, 2010

Top New York Criminal Defense Results: Client Arrested with Possessing Gun, Drugs and Driving with a Suspended License Avoids Criminal Record

by Jeremy Saland

Although it sounded horrific on paper, the New York criminal defense lawyers at Saland Law PC arguably obtained the best result for a client charged with Criminal Possession of a Weapon (a .380 handgun), Criminal Possession of a Controlled Substance (cocaine), Unlawful Possession of Marijuana and Driving with a Suspended License. Despite the allegations, our client pleaded to the violation of Disorderly Conduct. This disposition avoided not only a criminal record, but jail or probation.

Our client, a resident of North Carolina, came to New York to visit family. Unaware of the laws here, the client brought a legally registered firearm from his home state into New York. When he was pulled over for an alleged traffic infraction, the police also found some marijuana and cocaine on his person in an amount consistent with personal use. Compounding matters, our client was driving on a suspended license for old tickets he was unaware about.

October 12, 2010

Rockefeller Drug Law Reform Part I: Your Criminal Defense in New York as a First Time Offender

by Jeremy Saland

Criminal Possession of a Controlled Substance…Criminal Sale of a Controlled Substance…heroin, crack-cocaine and cocaine (note that marijuana is not a Controlled Substance crime). Your NY criminal defense attorney has heard of these crimes before and it is likely you have as well. However, what we have all learned and grown accustomed to over the years may no longer be valid. Why? The old Rockefeller drug laws in NY have drastically changed. We, the NY criminal defense lawyers at Saland Law PC, have reviewed the applicable statutes as they relate to to the possession and sale of drugs and will address some of these changes in our first entry on this subject.

Pursuant to the first change in the Rockefeller drug laws, “B” drug felonies found in Penal Law section 220.39 – Criminal Sale of a Controlled Substance in the Third Degree and New York Penal Law section 220.16 – Criminal Possession of a Controlled Substance in the Third Degree, required a mandatory term of imprisonment for a first time felony offender between one and nine years. The recent change now permits sentences that are a mix of probation and jail or even straight probation. Moreover, Willard, an inpatient drug treatment program and facility, is available for these first time offenders. Another change provided by the amended statutes authorizes courts to placed defendants convicted of the “B” drug crimes into SHOCK incarceration where previously a judge did not have the ability to do so. Previously, the NYS Department of Corrections had the authority to make this determination and could deny SHOCK even if a judge requested it.

July 23, 2010

Marijuana / Marihuana Possession in New York: From Unlawful to Criminal Possession & Your Criminal Defense

by Jeremy Saland

While there are bright and articulate people on all sides of the argument to legalize marijuana in New York State, as it stands now the law is clear. Possession of marijuana (“marihuana” in the New York Penal Law) is illegal. In New York City (Manhattan, Brooklyn, Bronx and Queens) as well as in Westchester County, possession of merely a joint can lead to an arrest or issuance of a Desk Appearance Ticket for Unlawful Possession of Marijuana (New York Penal Law 221.05), Criminal Possession of Marijuana in the Fifth Degree (New York Penal Law 221.10) or Criminal Possession of Marijuana in the Fourth Degree (New York Penal Law 221.15).

The issue for most people, however, is not whether possession is illegal or whether they will be issued a New York Desk Appearance Ticket or be put through the system. Instead, a question often asked to New York criminal defense attorneys is what is the potential punishment and, secondarily, how will this impact the accused’s future. This first entry on this topic will address the violation and the misdemeanor crimes involving marijuana possession as well as the potential punishment associated with those offenses. A later entry will address the felony crimes involving the possession of marijuana.