Drug Possession

Published on: May 11, 2020

Sentencing Court Erred in Unsealing the Court Record Related to a Different, Unrelated Proceeding – People v Anonymous, 2020 NY Slip Op 01113

by Stephen Bilkis

When it comes to sentencing in a criminal case, a court is not allowed to consider a proceeding in which the defendant was ultimately acquitted or that was otherwise resolved in favor of the defendant. In this case the Court of Appeals considered whether the Appellate Division properly concluded that the defendant in a criminal possession of a controlled substance case was not entitled to resentencing when the sentencing court improperly considered unsealed records related to another criminal proceeding that resulted in the defendant being acquitted.

In this drug crime case, the defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree. The deal he struck with the prosecution was that in exchange for pleading guilty he would receive a sentence of four years of imprisonment followed by three years of post-release supervision. However, there was a condition to the defendant receiving this sentence: he had to stay out of trouble. In other words, if the defendant committed another crime, the sentencing agreement was void.

Before the sentencing hearing the defendant was again arrested and was prosecuted for another crime. Had he been convicted, this would have been an obvious violation of the plea agreement. However, he was ultimately acquitted and the transcript of the trial was sealed pursuant to CPL 160.50. Under New York’s sealing law, under certain circumstances a criminal record is hidden from public view and from most government agencies. However, law enforcement can access the records, as can the courts and certain agencies.

Published on: March 30, 2020

Court Concluded that Defendant’s Right to a Speedy Trial Was Violated- People v. Watson, 975 N.Y.S.2d 369 (2013)

by Stephen Bilkis

In a drug possession case where the court had to decide whether the defendant’s right to a speedy trial had been violated, the court also examined the distinction between a criminal complaint and an information.

On October 23, 2012, the defendant was charged with criminal possession of a controlled substance in the fifth degree, a felony, in violation of Penal Law §220.06(2). The defendant allegedly was in possession of Hydrocodone and Alprazolam pills. On October 25, 2012, because there was no lab evidence confirming the type of drug that the defendant allegedly possessed, the charge was reduced to criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor under New York Penal Law §220.03. When the charge was reduced, the court marked the accusatory instrument a misdemeanor complaint. Nearly 5 months later, in March 2013, the defendant’s case had not been brought to trial.

New York’s speedy trial rules required that if the charge is a felony, the case must be ready for trial within 6 months. For class A misdemeanors the case must be ready for trial within 90 days, while for class B misdemeanors, the case must be ready for trial within 60 days. The time period runs from when the original complaint was filed. Where as in People v. Watson a felony complaint is replaced with a new accusatory instrument charging a misdemeanor, the prosecution must be ready for trial within 90 days from the filing of the new instrument or 6 months from the filing of the felony complaint, whichever is shorter.

Published on: March 16, 2020

Court Reduced Defendant’s Conviction of Tampering with Physical Evidence to Attempted Tampering – People v Zachary 2020 NY Slip Op 00165

by Stephen Bilkis

In a case involving marijuana possession, the Appellate Division reviewed what actions amount to the crime of tampering of physical evidence.

On May 9, 2013, in the City of Newburgh, the defendant was stopped as it was suspected that he was violating the City’s open-container law. After the officer identified himself, the defendant fled. While chasing the defendant, the officer noticed the defendant discard a plastic bag which, it was later determined, contained marijuana. The defendant was apprehended, arrested, and charged with a number of offenses, including tampering with physical evidence. Prior to trial, the defendant filed an omnibus motion to suppress the physical evidence. The motion was denied.

At trial the defendant testified that he did not discard any marijuana and that nothing was found on him when he was searched. Nonetheless, the jury convicted him of several charges including unlawful possession of marijuana and tampering with physical evidence.

Published on: June 8, 2018

Defendant Appeals Sentencing for Drug Related Charges

by Stephen Bilkis

People v. AA

June 5, 2018

This appeal is from a judgment of the Supreme Court of New York County rendered on June 13, 2016. The defendant was convicted by a jury of two counts of second-degree criminal possession of a weapon. He was sentenced as a second violent felony offender to ten years. There are three judgments that took place subsequently in the same court with the same judge. The defendant was convicted of second-degree use of drug paraphernalia, fourth-degree conspiracy and third-degree sale of a controlled substance. As a result, his probation was revoked, and he was sentenced to two concurrent ten-year sentences.

Published on: May 7, 2018

Defendant Appeals Persistent Felon Sentencing Rule

by Stephen Bilkis

People v Prindle

2017 New York Slip Op. 05267

June 29, 2017

Published on: May 4, 2018

Defendant Seeks to Appeal Guilty Plea Pending Deportation

by Stephen Bilkis

People v A

2018 NY Slip Op 03136

May 2, 2018

Published on: February 11, 2018

Defendant Files Appeal in NY Appellate Court Contending No Constructive Possession

by Stephen Bilkis

This is an appeal from a judgment entered on 11-20-14 against the defendant. The defendant was found guilty of criminal possession of a controlled substance in the 3d degree and possession of drug paraphernalia in the 2^nd degree. Pursuant to PL section 220.50 [1]- [3], the defendant argues that there was no direct evidence of constructive possession and therefore he should never have been convicted. The trial court erred in failing to provide a circumstantial evidence instruction to the jury. This court agrees. The judgment against the defendant is reversed and a new trial is granted.

Police officers executed a search warrant at the residence of the defendant’s girlfriend. The girlfriend leased this apartment in her name. When the police searched the premises, they found baggies of cocaine throughout the apartment, as well as paraphernalia in the form of scales, sandwich baggies and dillutant. The defendant’s name was on mail left at the apartment, but otherwise, it didn’t appear that he lived there.

Both the girlfriend and the defendant were indicted for possession. The girlfriend plead guilty and stated that all of the items were hers. Despite this, the trial court proceeded against the defendant under the theory of constructive possession.

Published on: March 19, 2014

Court Discusses Effect of a Defendant Waving their Right to Appeal upon a Plea of Guilty

by Stephen Bilkis

Published on: March 18, 2014

Court Discusses Prejudicial Treatment Resulting Prosecution’s Witness and Summation

by Stephen Bilkis

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.

Published on: March 17, 2014

Court Discusses Probable Cause of a Warrantless Search

by Stephen Bilkis