Drugs and Narcotics

July 10, 2010

Criminal Possession of a Controlled Substance in the Fifth Degree (NY PL 220.06(5)): Must the Cocaine be 500 Pure Milligrams or 500 Aggregate Milligrams

A common felony offense charged by police and defended by New York criminal defense lawyers in the arena of controlled substance, narcotic and drug crimes, is Criminal Possession of a Controlled Substance in the 5th Degree pursuant to New York Penal Law section 220.06(5). A serious crime involving the possession of cocaine, CPCS 5th Degree is a “D” felony punishable from one year to two and a half years in state prison for a first time offender. Obviously, if you are a “predicate felon” you will face more time in state prison. Fortunately, due to changes in the Rockefeller Drug Laws, there are potential ways to avoid state prison that should be discussed with your New York criminal defense attorney.

Having briefly addressed the ramifications of New York Penal Law 220.06(5), the following entry will take a step back and (1) define the offense as it relates to cocaine possession and (2) discuss whether the 500 milligrams is an aggregate weight or a pure weight measurement.

July 2, 2010

Fake & Fraudulent Drug Prescriptions in New York: The Crimes of Forgery and Criminal Possession of a Forged instrument

by Jeremy Saland

Maybe you stole a couple of sheets from a physician’s prescription pad and made out a completely fake prescription for drugs and medicine such as Vicodin, Oxycodone or OxyContin. Maybe you altered your doctor’s legitimate prescription by increasing the dosage or amount of Xanax, Adderall or Ritalin. Regardless of how the fraudulent prescription is drafted, as long as it is in fact altered you may face the “D” felonies of Criminal Possession of a Forged Instrument in the Second Degree or Forgery in the Second Degree.

If you actually drafted, created or altered the prescription fraudulently, a likely charge you will face is Forgery in the Second Degree pursuant to New York Penal Law 170.10(5). Often times, however, the police and prosecutors do not catch the person in the act of the alteration. Instead, either a search of a vehicle, a person’s clothing or even the retrieval of the forged prescription from a pharmacist will result in a charge of Criminal Possession of a Forged Instrument in the Second Degree pursuant to New York Penal Law 170.25. Regardless of which offense is charged, a conviction for these felonies is punishable by up to seven years in state prison.

February 8, 2010

New York Penal Law 220.03 – Criminal Possession of a Controlled Substance in the Seventh Degree & Your Criminal Defense: Does Quantity of the Drug Matter?

by Jeremy Saland

Whether you are issued a Desk Appearance Ticket (DAT) or you have been arrested in Manhattan, Brooklyn or anywhere else in New York, if you possess a controlled substance you may be charged with New York Penal Law section 220.03. This offense, Criminal Possession of a Controlled Substance in the 7th Degree, is an “A” misdemeanor punishable by up to one year in jail and applies to such drugs as cocaine, crack-cocaine, heroin, extacy, oxycodone, etc. Make no mistake. If convicted of NY PL 220.03, you will have a criminal record that will not just go away. Even a plea to a Disorderly Conduct (NY PL 240.20 – a common offer in misdemeanor drug cases) can have real life ramifications years down the road.

Criminal Possession of a Controlled Substance in the Seventh Degree, NY PL 220.03, is defined as follows:

December 7, 2009

NY Drug / Narcotic / Controlled Substance / Marijuana / Marihuana Possession Presumptions: New York Penal Law Sections 220.25(1) & 220.25(2)

by Jeremy Saland

Although the Rockefeller Drug Laws have certainly eased over the years, New York Criminal defense attorneys and their clients must have a working knowledge as to the law involving legal presumptions and Criminal Possession of a Controlled Substance. While often times the police allegedly observe a sale or the actual possession, New York’s Penal Law permits certain presumptions that the accused possessed the drugs in question. These presumptions are narrowly construed, but may be applicable in your case depending on the facts and circumstances. Whether the drug is cocaine, heroin or crack, the following presumptions apply:

220.25 Criminal Possession of a Controlled Substance; Presumption:

October 19, 2009

Criminal Diversion of Prescription Medication (NY Penal Law 178.10, 178.15, 178.20 and 178.25): Is the Defendant’s Own Statement Sufficient to Establish the Nature of the Prescription Drug?

by Jeremy Saland

A crime that has been on the rise as of late is the offense of Criminal Diversion of Prescription Medication pursuant to Article 178 of the New York Penal Law. While street level dealers are often involved in this crime, Criminal Diversion of Prescription Medication can arguably be viewed as the “white collar” crime of the narcotics world. Recently, in a case pending in Manhattan Supreme Court, a judge addressed the issue regarding the means by which the prosecution must establish the presence of a particular prescription medication. The question raised was whether or not it is sufficient to establish that a particular substance is a prescription medication if that fact is established solely by the statements of the accused and without further corroboration. In other words, has the prosecution met its burden by using the statements of a “seller” who says the drugs are a particular prescription medication without expert testimony or a laboratory report?

According to Judge Marcy Kahn, in People v. Khan, 3299/2008:

September 15, 2009

Attempted Tampering with Physical Evidence (New York Penal Law ､110.00/215.40): Does the Complaint Need To Establish the Existence of the Contraband?

by Jeremy Saland

According to New York Penal Law ､215.40(2), a person is guilty of Tampering with Physical Evidence when “[b]elieving that certain evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by an act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.” New York criminal defense attorneys, such as the former Manhattan prosecutors at Saland Law PC, can tell you that this crime is often charged as Attempted Tampering with Physical Evidence in an all too common scenario played out on the streets of New York City when a person discards contraband (marijuana, cocaine, heroin or even a weapon such as a knife or gun) after being confronted by the police. The question that exists in these cases is must the complaint charging the individual establish the officer’s knowledge as to what the evidence is as well as the basis of that knowledge?

In a decision rendered on July 8, 2009 in Manhattan Criminal, People v. Anthony Estrada, 2009NY005091, a man was alleged to have thrown marijuana leaves up into the air as the police attempted to arrest him. As a result, the the officer was unable to recover the alleged contraband. In dismissing the complaint, the court found, among other things, that the officer did not establish that the substance in question was marijuana.

September 7, 2009

NY Penal Law 220.03, 221.10 and 221.40: Is a Laboratory Analysis or a Field Test Needed to Convert a Drug Complaint at Arraignment?

by Jeremy Saland

After the Court of Appeal’s recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the “policy” that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant’s constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys at Saland Law PC believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

In People v. Pernell Nunn, docket number 2009KN030910, decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether “the exercise of the court’s discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant’s constitutional right to due process?”

August 8, 2009

NY Criminal Defense: The Differing Consequence of Selling Marijuna (NY Penal Law 221.40) and Other Controlled Substances (NY Penal Law 220.39 and 220.44)

by Jeremy Saland

NY Criminal defense attorneys are confronted regularly with the reality that possessing or selling “drugs” can mean vastly different things depending on the substance. The disparity between possessing and selling marijuana and controlled substances such as cocaine, crack and heroin is enormous even though the NYS legislature recently eased the Rockefeller Drug Laws. Clearly, and arguably correctly, the legislature has deemed Criminal Possession or Criminal Sale of Marijuana (“Marihuana” in the statute), pursuant to NY Penal Law sections 221.10 and 221.40, as less dangerous or harmful to public safety than Criminal Sale of a Controlled Substance pursuant to NY Penal Law 220.39 and 220.44.

A great example of this disparity is illustrated in the following scenario. If you are arrested and a small bag of marijuana clearly for personal use is recovered from your pant pocket, you will like face the charge of Unlawful Possession of Marijuna. Baring the amount of marijuana exceeding twenty five grams, a charge of Unlawful Possession of Marijuana is a violation and not a crime. While it is possible to be sentenced up to fifteen days in jail, if it is your first offense you are eligible to receive a Marijuana ACD. If that is the disposition, then in one year the case would be dismissed and sealed assuming you did not get into any further trouble. In the alternative, even if you were convicted of the Unlawful Possession of Marijuana, you would not have a criminal record as a result.

July 10, 2009

NY Drug Possession and Your Criminal Defense: Legal Possession of Drugs without Physical Possession

by Jeremy Saland

In New York State and New York City, you can be arrested, indicted and convicted for Criminal Possession of a Controlled Substance (drugs such as cocaine and heroin), Criminal Possession of a Weapon (firearms, guns, pistols and certain knives) as well as other charges even if you physically do not possess the contraband. At its simplest level, you need not possess in your hands or anywhere on your person the gun, drugs, etc. Under New York law, your possession may be “constructive.”

In People v. Lawrence Johnson, 2008NY091609, decided May 26, 2009, a New York County (Manhattan) Criminal Court issued a decision directly dealing with the legal concept of “constructive possession.” In that matter, the defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law ､220.03), Criminally Using Drug Paraphernalia in the Second Degree (PL ､220.50[2]) and Unlawful Possession of Marihuana (PL､221.05).

April 11, 2009

Attempted Criminal Diversion of a Prescription Medication: No Need to Prove Drug is a Prescription Drug?

by Jeremy Saland

NY criminal defense attorney’s know that prosecutors and judges take drug crimes very seriously even if the legislature recently relaxed the Rockefeller drug laws relating to narcotics. New York Criminal defense lawyers often have a daunting task before them when battling to defend their clients. In fact, a recent judicial decision corroborates this. Published in the New York Law Journal on Friday, a judge in a Manhattan criminal court case held that “where the charge is an ‘attempt’ to divert a prescription medication, the People need not provide a lab confirming that the drug recovered was in fact a prescription medication.” In “normal” words, if you are charged with Attempted Criminal Diversion of a Prescription Medication, the “prescription medication” you are alleged to have sold could in fact be sugar tablets and the crime would still stand.

For background purposes and as outlined in People v. Christophe Polanco, 2008NY077882 (decided on March 16, 2009), a person is guilty of Criminal Diversion of Prescription Medications in the Third Degree when he “commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars.” (PL ､178.15[1]). A criminal diversion act is “an act or acts in which a person knowingly: [a] transfers or delivers, in exchange for anything of a pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it” (PL ､178.00[3]). Prescription medication means any medication “for which a prescription is required in order to be lawfully sold, delivered or distributed by any person authorized by law to engage in the practice of the profession of pharmacy” (PL ､178.00[1]). A person is guilty of an attempt when, with intent to commit the crime, “he engages in conduct which tends to effect the commission of such crime” (PL ､110.00).