Articles Posted in Drug Possession

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On facts very similar to those of the instant case, the United States Court of Appeals for the Fifth Circuit, vacated a sentence imposed for escaping from custody after being arrested on a felony charge, and remitted the matter to the trial court to modify the judgment to reduce the conviction to escaping from custody after being arrested on a misdemeanor charge. At the trial, documents were introduced into evidence to show that he was being held in custody at the time of his escape on a charge of violating section 641 of title 18 of the United States Code which provides that: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or “Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted-“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. “The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”

The documents described the property alleged to have been stolen as “31 United States Postal Money Orders, things of value of the United States”, but contained no allegation of their value. The Fifth Circuit held that the criminal defendant’s conviction of escaping from custody after being arrested for a felony charge had to be reduced to one of escaping from custody after being arrested on a misdemeanor charge in view of the lack of proof of the value of the property alleged to have been stolen.

Moreover, the Fifth Circuit stated the following with regard to the amount of proof necessary to establish escape from custody on account of a felony charge: “In the case before us, the indictment was silent as to the nature of the offense leading to the custody, and the criminal court did not charge the jury at all on the point. There was only a passing hearsay reference to a felony arrest during the course of trial, hardly enough to constitute a basis for a jury finding of guilt beyond a reasonable doubt, particularly when the jury was not even instructed on the point. The proof was sufficient to prove, at most, escape from custody on account of a misdemeanor charge”.

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People v. Aiello
Court Discusses Effect of a Defendant Waving their Right to Appeal upon a Plea of Guilty
The defendant was arrested while in an automobile after a violating his parole. The defendant was searched along with his automobile was searched where a pistol, ammunition and a hypodermic needle were recovered in the vehicle and glassine envelopes containing heroin and cocaine was found on the defendant’s person. The police also obtained a warrant to search the defendant’s apartment where drugs and drug paraphernalia were seized. The defendant was read his Miranda rights and made several incriminating statements thereafter. The defendant then requested to suppress his confession and the evidence seized from his apartment and his person. The hearing concluded that the evidence found in his apartment was to be suppressed but the requesting to suppress the evidence found on his person was denied. The defendant also requested that the charge of commission of the crime of criminal possession of a controlled substance in the fourth degree be dismissed but the request was denied. The defendant thereafter pled guilty to the charged and was sentence to a term of 4 to 8 years imprisonment. The defendant then appealed the conviction.

The first ground for the reversal of the conviction was that police failed to ascertain whether he was represented by a New York City Criminal Lawyer before interrogating him because of his outstanding charge according to People v. Bartolomeo, 53 N.Y.2d. As a result, the defendant asserted that the statements made during interrogation should have been suppressed. The Appellate Division of the Supreme Court held that the argument was baseless because the policed denied having knowledge of the outstanding charge as there was no evidence of the charge in his record. Further, the defendant during his suppression failed to mention that he was not represented by a New York City Criminal Attorney on an unrelated charge at time of his arrest. The principle in the People v. Bartolomeo, could only be used when the when it was known that the defendant was unrepresented in a previous charge either from the record or from the defendant’s own admission. Therefore, the conviction could not be dismissed on this ground because there was no evidence that the defendant was unrepresented on the unrelated charge.

Secondly, the defendant held that the conviction should be reversed because the he did not possess substances that contained more than one eighth of an ounce of a narcotic drug. The defendant with the aid of the laboratory report published by the State Police showed that the cocaine and heroin seized each contained less than one eighth of an ounce which was in violation of section 220.09(1) of the Penal Law. The defendant stated that the literal definition should be used that a person was only guilty of commission of the crime of criminal possession of a controlled substance in the fourth degree where there was at least one eighth of an ounce of a single narcotic drug, not a combination of such drugs. However, the court could not review his contention because the conviction could not be reviewed as a result of his guilty plea to the charge. An appellate review of pleading deficiencies in an indictment was precluded by guilty plea unless defect was jurisdictional, that is, failure to effectively to charge the defendant with the commission of the crime. Any pleading defect arising from the aggregation of weight of heroin and cocaine seized from defendant, for charge of criminal possession of controlled substance in fourth-degree charge, was not jurisdictional; therefore, the appellate review was precluded by defendant’s plea of guilty to charge to review the matter.
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People v. Green
Court Discusses Prejudicial Treatment Resulting Prosecution’s Witness and Summation The defendant was arrested and charged with criminal possession of a dangerous drug in the fourth degree. The police went to the defendant’s apartment where he then sought to dispose of a bag by throwing it from a window. The bag was retrieved by an officer and 56 glassine envelopes were discovered. The defendant as well as the other occupant was arrested and charged. During the trial the defendant testified that he had never used or possessed drugs at any time. The one of the police officers testified that he heard the window open and close and that he was denied entry into the apartment by the defendant. Another officer testified that he saw the defendant throwing a bag from the window and he retrieved the bag. The defendant was convicted and appealed the conviction on the ground that he was denied a fair trial.

The majority in the Appellate Division of the Supreme Court affirmed the decision of the trial court convicting the defendant on a single count of the indictment charging him with criminal possession of a dangerous drug in the fourth degree, notwithstanding the claim that the defendant was denied a fair trial by reason of, inter alia, alleged references by the trial court to drug trafficking and the sale of drugs. The issue was on of credibility between the officer who saw wen the defendant dropped the bag of narcotics and the defendant who stated that he never had any drugs. The police officers were seen as more reliable than the testimony of the defendant.

The minority of the Appellate Court believed that the conviction was to be reversed the judgement because he was of the opinion that the defendant did not receive a fair trial because the testimony of the officer who retrieved the bag should have been excluded coupled with the summation of the Assistant District Attorney. The Assistant District Attorney summarized that because the criminal defendant called no character witness it could be inferred that the defendant was not a man of good character. The judge was of the belief that this summation resulted in prejudice for the defendant.
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People v. Cunningham
Court Discusses Probable Cause of a Warrantless Search
The defendants were arrested and charged after the officers went to an apartment belonging to the defendants where one of the defendants tried to dispose of narcotics on the fire escape. The narcotics on the fire escape were heroin which was stored in 1,424 balloons. Within the apartment room the officers found small quantities of marijuana and cocaine inside of the apartment along with persons around a card table. The defendants along with the other persons in the apartment were arrested. The defendants were convicted of criminal possession of a dangerous drug in second degree, and they appealed. The defendant appealed on the ground that the officer did not have probable cause to search the apartment without a warrant and in the alternative that their sentence was excessive.

The Appellate Division of the Supreme Court analysed the circumstances of the arrest to determine whether there was probable cause. Probable cause exists if the facts and circumstance known would cause a reasonable person to believe that a crime has been committed. The officer does not need to be certain that a crime has been committed but he needs to have a reasonable suspicion to believe that a crime was committed. The police officers proceeded to the apartment when the radio dispatch that shots were fired from the apartment room and it was stated as a known narcotics location. The police had probable cause to enter the apartment and conduct a warrantless search based on the fact that one of the officer observed in a basket filled with narcotics was on the fire escape. There was a need for immediate action of the police as there was evidence that the defendants attempted to conceal the evidence on the fire escape, hence a delayed reaction would not be the best decision.

The defendants in the alternative challenged the sentence imposed as it was excessive. The defendants were indicted for a Class A felony. If the defendant was convicted of a dangerous drug in the first degree which she was indicted for they would have been sentenced to a maximum of life imprisonment. They were employed an erroneous heroin distribution and admitted that it was not the first time working there. Therefore, the sentence was not considered excessive taking into consideration the quantity of heroin and their experience.

The minority opinion was of the view that the conviction should have been reversed as there was no probable cause to enter the apartment of the defendants. The detective suspected that the ballons contained heroin but he did not know with certainty that the balloons were not being used as party accessories or heroin receptacles. The police officers could have secured the destruction of the heroin without entering the apartment of the defendants. Additionally, the defendants sentence was excessive as upon a plea of guilty guilty of criminal possession of a dangerous drug in the second degree and sentencing her to an indeterminate term of incarceration not to exceed four years.
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People v. Thomas
Court Discusses Probable Cause of a Warrantless Search
The defendant was arrested after an informant told the police that the defendant and a female was selling heroin from the room of a motel. The motel was under surveillance and a known heroin addict was seen on the premises. The police officers then entered the motel and performed a warrantless search in the motel room where the defendant and the female performed their business. The officers found the defendant disposing a cigarette pack which contained small packets of white power by flushing it. The police also found drug paraphernalia in the form of hypodermic needles and syringes in the motel room. The defendant was indicted and convicted of one count of criminal possession of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the fourth degree. The defendant appealed the conviction on the ground the police lacked probable cause.

The Appellate Division of the Supreme Court affirmed the conviction of the trial court as probable cause for the search was found based on the circumstances. The Aguilar-Spinelli test had to be satisfied to establish probable cause. This test was used to establish the validity of the warrantless search performed by the police when the heroin was found. The two requirements of the Aguilar-Spinelli test to establish probable are that the informant possesses basis of knowledge for the information relayed and there is something to indicate that the informant was reliable. There was evidence to believe that the informant was reliable as the informant stated that the defendant who was a black man and a black woman was selling $40 bag of heroin at a motel in Albany in a specific room. Further, a known cocaine drug addict was found lurking around the room where the defendant was found but ran away when he saw the police officers watching. One of the detective who was observing the motel stated that he knew that the defendant to be black male with a criminal history of selling heroin from motel rooms.

The defendant asserted that there was no exception to forcibly enter a room without a warrant requirement even where there was probable cause to suspect that criminal activity. This was assertion was without merit as there was evidence to justify the entry into the motel room as there was a fear the defendant would have destroyed the evidence after one of the defendant’s buyer’s fled the scene. One of the detective stated that the police only entered the room to secure it however, the saw the defendant destroying the evidence flushing it. Therefore, the material had to be seized and the defendant arrested.

The defendant also asserted that the trial court erred in ruling that he was mentally competent to stand trial. However, the assertion was baseless as the prosecution presented two expert reports of a psychiatrist and a psychologist who testified that he was competent to stand trial. The testimony stated that the defendant understood the nature of the proceeding and his ability to participate in the trial. Therefore, there was sufficient evidence to show that he was competent and his actions during trial were not contrary to the findings. The defendant received a fair trial with adequate legal representation and the sentence imposed was not excessive.
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The defendant, BS, was charged with violating the New York State Vehicle and Traffic Law § § 1192(3)- Driving While Intoxicated, 1194(1)(b)- Refusal of Breath Screening Test, 1128(a)-Moved From Lane Unsafely, 1129(a) -Following Too Closely and §1227-1 -Consumption or Possession of Alcoholic Beverage in Motor Vehicle.

All these are in connection with an incident allegedly occurring on 4 December 2010, in the Town of Greece, County of Monroe, State of New York. Pursuant to the Order of the Supreme Court dated 23 December 2010 this matter was transferred from the jurisdiction of the Town of Greece to the jurisdiction of the Town of Parma. The defendant knowingly, intelligently, and voluntarily, waived his right to a trial by jury by signing a Jury Trial Waiver Form and requested this Court to render a decision following a fair and impartial trial on 11 April 2011.

At the trial, the People presented the following direct evidence for the court: two witnesses-specifically, Greece Police Department Officer K and Greece Police Department Officer J, two exhibits-specifically, Exhibit No. 1 entitled “DWI Warnings” and Exhibit No. 2 entitled “Commissioner’s Warnings and Refusal to Submit to Chemical Test.”

The defendant after having been advised of his constitutional right to testify in his own behalf and his right to remain silent exercised his right to remain silent and did not present any other evidence for the Criminal Court.

The court takes note of the fact as presented that the defendant was operating his vehicle, a 2009 gray Toyota, on 4 December 2010 in the Town of Greece at approximately 5:46 p.m. when the defendant’s vehicle was involved in a motor vehicle accident. Specifically, as Officer K’s testimony revealed, Officer K was dispatched by 911 to the location of West Ridge Road near Nantucket Street where he personally observed two vehicles, one vehicle in the far left turning lane, and a second vehicle behind it, with EMS and fire response units attending several patients. Officer Beer indicated that he questioned an operator if he was driving one of the vehicles and the operator responded that he was driving the vehicle, specifically Vehicle 2. Officer K testified that Vehicle 2 would have been the striking vehicle in the accident, the gray Toyota. Officer K identified the criminal defendant through his New York State Driver’s License as operator of Vehicle 2, the striking vehicle, or gray Toyota.

Officer K testified that there was damage to the defendant’s vehicle and while looking inside the gray Toyota, the Officer had discovered a 12-ounce can of Labatt’s Blue beer in the center console, half full. While Officer K was in the back of an ambulance, he continued his investigation by asking the defendant if the defendant had anything to drink, and the defendant said “No”. Officer K thereafter asked the defendant where he was coming from and the defendant replied “Staples”. Officer K testified, however, that the defendant did detect a strong odor of an alcoholic beverage, DWI, observed the defendant’s eyes were glassy, watery and bloodshot. Officer K testified that he was sitting in the rear facing chair in the back of the ambulance directly over the defendant’s face while making these observations, approximately two feet away. From inside the ambulance, Officer K attempted to perform the Horizontal Gaze Nystagmus test and provided the defendant with basic instructions using the Officer’s pen. According to Officer K, the defendant indicated to the Officer in sum and substance “I am not going to do that. Just get me to the hospital,” and the defendant closed his eyes and refused to cooperate. Officer K thereafter testified that the defendant was taken by ambulance to Unity Hospital in the Town of Greece for additional treatment.

The Court heard additional testimony from Greece Police Officer J who was also dispatched to the location of 2081 West Ridge Road at the intersection of Nantucket in the Town of Greece. Officer J made an observation of the operator of the gray Toyota and he specifically indicated that the operator of the vehicle had an odor of alcoholic beverage coming from his breath, glassy, watery, bloodshot eyes. Officer J indicated that once the defendant was transported to Park Ridge Hospital, he was read his DWAI Warnings. Officer J testified that he did in fact administer these warnings on the evening to the defendant and read them word for word as they appeared on the Exhibit. Moreover, Officer J thereafter read the Commissioner’s Warnings with regard to refusing to take the breath test at 7:30p.m, 7:35p.m., and 7:40p.m., approximately almost 2 hours after the motor vehicle accident. According to Officer J, the defendant answered “No” to each of the questions with regard to taking the breath test. Lastly, Officer J testified that as he was administering the Commissioner’s Warnings for DWI for refusing a chemical test, he noted that the defendant had a glassy, watery, bloodshot eyes and a strong odor of alcoholic beverage coming from his breath.

To Be Cont…
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People v. Shapiro
Court Discusses Classification of Methadone Criminal Conviction after the Amendment of the Penal Law
The defendant was charged and pled guilty to having more than one eighth of an ounce of methadone in his orange juice. The conviction was classified as an E felony then changed to a B misdemeanour. The criminal defendant petitioned to the court to ascertain whether his conviction could be classified as a prior felony conviction according to section 70.06 of the Penal Law.

In 1973 Section 70.06 of the Penal Law defined a prior felony conviction as an offense where a person is sentenced to more than one year of imprisonment in the State of New York or any other jurisdiction. The constitutionality of the provision was challenge as it violated the equal protection clause because it treated an out-of-state conviction as a felony even where it would not be a felony in New York State. This resulted in out-of-state individuals receiving a harsher treatment than a person who committed the same offense in New York. The decision of People v Parker 41 N.Y.2d 21 by the Court of Appeals stated that there was a need to have a relationship between the the seriousness of a crime, by the severity of the sentence and the norms prevailing in the jurisdiction in which a crime was committed by the Legislature to justify a difference in treatment. The section was amended by the Legislature to provide equality as an out-of-state felony conviction was no longer a consideration to determine whether a person had a person had a prior conviction unless the offense is an authorized felony in the state.

The new amendment required that the person’s out of state felony conviction will be only be a felony where the offense it also a felony in New York. There was no rational in treating the defendant more harshly as someone with a similar out of state conviction. The defendant would not have equal protection guaranteed by the constitution. The history of methadone legislation was examined by the court in ascertaining whether it was a felony. In 1973 methadone was classified as a narcotic drug subjecting it to the combined weight stipulation provisions like drugs such as heroin, morphine and cocaine. There was a subsequent amendment which changed the method in which methadone was dispensed from tablet to liquid. This resulted in one dose of methadone in the defendant’s container of orange juice constituted felony; this was in contrast to over 400 doses for heroin, 300 doses for cocaine and 600 doses for LSD being classified as a felony. The case of the People v. Carter, 80 Misc.2d 1081, held that it was illogical that the law treated 30 milligrams of therapeutic methadone added by an employee of a clinic with the same degree of criminality and sanction as the same weight of more potent, illicit narcotics possessed or sold in dosages at least one hundred times as great. As such, there was an outcry as the law relating to methadone conviction was viewed as counter-productive. After the defendant’s case, the law was amended which classified methadone according to a pure weight standard.

It was concluded by the Court that the defendant was not subjected to a felony conviction by reason of his 1974 methadone conviction. Prior conviction on plea of guilty to attempted possession of one-eighth ounce of methadone could not legitimately be used as a prior felony conviction for enhancement purposes where offense, though a class E felony at time of conviction. The offence was reduced to a B misdemeanor and if the court gave it felony status it would be contrary to expressed legislative intent, purpose and rationale and basic principles of justice and fairness.
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In conjunction with this motion, the defendant brought another motion to have the Court inspect the grand jury minutes, and to dismiss the indictment upon the ground that the evidence before the grand jury was not legally sufficient to support the criminal offense charged.

After granting the motion to inspect, the Court examined the minutes which revealed that the only exhibit received in evidence was a tape recorded conversation between the defendant and another person in which the defendant offered to sell him a gram of cocaine for fifty-five dollars.

Upon this exhibit plus the testimony of the other person that he followed the defendant’s instructions to his apartment, that he paid the sum asked, and received the cocaine this Court denied the motion to dismiss.

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The defendant has been indicted for the commission of the crime of Criminally Selling a Dangerous Drug Possession in the Third Degree, a Class C Felony, in violation of the Penal Law § 220.35, and he now moves that the indictment then be dismissed.

A New York Criminal attorney said that the district attorney responds to the effect that the people have no scientific reports in their possession, but will provide such reports which may come into their possession in the future, and ask that the motion be denied without prejudice to a renewal at the time of trial under circumstances where the chain of evidence will not be interfered with.

The charge stated that the said defendant in the Town of Poughkeepsie, County of Dutchess and State of New York, knowingly and unlawfully offered to sell a quantity of cocaine to another person.

While the defendant seeks scientific reports of the alleged cocaine and samples for testing, his principal contention is that his physical possession of the cocaine, thus proving his capability to transfer it to another person, and its chemical analysis establishing that the substance was cocaine are essential elements of the crime, in the absence of which the indictment must be dismissed.

This Court has heretofore held that the unlimited disclosure provided by CPL § 240.20, subd. 2, requires in a case involving dangerous drugs, where the property containing the alleged drug has been seized by the police, examined and analyzed scientifically, and thus the substance of the drug itself is naturally the basis of the charge, that the people should furnish to the defendant, or his attorney, all reports and documents, or copies thereof, concerning any scientific tests and experiments made on such property seized, and in view of the people’s affidavit the Court assumes that the people do not in fact have any reports and documents concerning scientific tests and experiments made in connection with the case.

Notwithstanding such assumption, however, it is ordered that even though no reports containing scientific tests and experiments are presently in the possession of the people, if hereafter at any time in the future any reports and documents concerning scientific tests and experiments made in connection with the case do come within the ‘possession, custody or control of the district attorney, the existence of which is known, or by the exercise of due diligence should become known’ to him to exist, then the same, or copies thereof, shall be forthwith supplied to the defendant.

To Be Cont..
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The court notes that the reliability of a field test is compromised precisely because it’s done in the field, generally under less stable condition than that of the precinct. In states where field test are admitted a visual recording of the officer carrying out the test is provided to establish the reliability of that evidence. Similarly, in New York a video recording of the test is performed at the precinct to establish the reliability of its administration. In other states, where a portable breath test is done in the field it may be admitted in the People’s case in chief because it is video recorded. Where a portable test is admissible there should be mechanisms in place to support its reliability. In DWI cases legislators have sought to ensure that the defendant is convicted on reliable evidence.

The portable SD-2 Intoxilyzer test and the Intoxilyzer 5000EN are used differently. The latter is used at trial to establish the level of alcohol in the defendant’s body while the first is used in the field to determine if alcohol was consumed. Further, to admit the results of the Intoxilyzer 5000EN, which is conducted at the precinct, the People must show that the devise was properly calibrated, generally within about a six month period as held in People v Boscic. As the defense notes, machines are fallible and to admit the result of such equipment there must be evidence that the devise was regularly serviced and maintained to ensure its effective operability.

The court further notes that if portable breath tests done in the field were admissible in the People’s case in chief due process would require advising the driver that the result of such test could be used to convict. Vehicle and Traffic Law § 1194 (1) (b) provides that a driver cannot refuse a breath test and that a chemical test may be given if the initial breath test indicates that the driver has consumed alcohol. Further, if portable breath test were admissible at trial to prove the suspect was legally intoxicated there would be no cause to provide for a second test, if the first were sufficient. To admit evidence of a portable breath test in a case in chief would be to circumvent the law. For the People to be able to rely on a portable alcohol breath test conducted at the scene in the field to prove their case in chief there must be a different criminal statutory scheme than that in existence.

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