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Defendant Moves to Dimiss Indictment Arguing Charges are Unconstitutional


The defendant moves to dismiss the indictment against her claiming that the statutes upon which the charges are founded are unconstitutional. Defendant is alleged to have sold over an ounce of a substance containing methadone to an undercover officer. This alleged sale has given rise to the three charges contained in the indictment; one count relates to the alleged sale and the others to the defendant’s possession immediately prior to the sale.

A New York Criminal attorney said that the thrust of the defendant’s claim with respect to the use of the ‘aggregate weight’ of the substance possessed and sold as the basis for determining the degree of offense charged in the first and second counts is that it creates irrational distinctions between similar kinds of conduct and imposes unequal punishments upon offenders who have committed virtually identical illegal acts.

It is undisputed that the defendant possessed and sold over an ounce of a mixture containing 30 milligrams of methadone in solution with over one ounce of an orange juice preparation. The defendant contends that it is unconstitutional to hold her criminally liable for the possession and sale of more than one ounce where the total controlled substance present constitutes approximately one-tenth of one percent of the aggregate weight of the total mixture or solution.

Prior to 1950, the sale of any quantity of narcotic drug was treated as a felony and carried a sentence of up to ten years imprisonment. All possessory offenses, regardless of the quantity involved, were misdemeanors, subject to a maximum sentence of one year.

The Revised Penal Law of 1967 eliminated the weight-presumptions from the possession-with-intent-to-sell offense and contained no weight-predicated sale offense. Bare possession of more than one-eighth ounce of heroin, morphine or cocaine was made a class D felony and more than one ounce of cannabis, morphine, heroin or cocaine was made a class C felony.

In 1969, the Revised Penal Law was amended to create class A and class B felonies based on the sale or possession of aggregate weights of more than 16 or 8 ounces of heroin, morphine or cocaine. Except for marihuana, no other drug was subject to a sale or possession offense based on weight.

Major revision of the penal law provisions with respect to all drugs was proposed by The Temporary State Commission to Evaluate the Drug Laws, a Commission established by the Legislature and charged with the responsibility for recommending changes in law. The Commission’s proposals with respect to recodification of the public health law with conforming changes in the penal law were enacted in 1972. Although the Commission proposals with respect to substantive changes in the penalty provisions were rejected by the Legislature, the recommendations contained in the Commission’s Interim Report provided the conceptual format for the vastly increased penalties enacted during the 1973 Session of the Legislature.

To some extent the challenge to the use of the aggregate weight or volume of the narcotic And the non-narcotic diluent is similar to that made in a plethora of cases.

‘Under existing law, whenever an offense is predicated upon possession or sale of a specific weight of dangerous drug, the weight is determined by the Aggregate weight of any mixture or compound which contains the particular dangerous drug

The Commission report then discusses various criteria for determining weight related penalties, giving particular significance to the number of doses a particular quantity of drug would generate in the illicit market. Relating the doses to weight, as found by the legislative commission and interpolating the number of doses into the 1973 possessory offense under which the defendant is charged, the Court see that the Other drugs listed in the possession in the second degree statute are all of quantities reflecting a substantial number of doses both in aggregate and pure weights.

The defendant has submitted the affidavit of an Assistant Commissioner in the New York City Department of Health, and Director of the New York Methadone Maintenance Treatment Program. The People have conceded Dr. Newman’s expertise.

This conclusion may explain why defendant’s possession and sale are treated as A–II and A–I felonies under the statutes. However, it does not directly affect the legal principles applicable to her constitutional challenge. What the Legislature may have known, or be presumed to have known, when passing a law certainly is relevant to the resolution of ambiguities or problems in the construction of a statute. It is not directly relevant to the question of whether there is a rational basis for the classification drawn by the Legislature. Whether there is a rational basis must be decided on the facts as they are, not as they may have been or were thought to be.

The remaining charge, Criminal Possession of a Controlled Substance in the Third Degree is based upon the defendant’s Possession of the methadone with intent to sell. Under subsection 1 of this section, the possession of any quantity of any narcotic with intent to sell it is proscribed and punished as a class A–III felony.

Since this charge is not predicated upon any particular weight of methadone, it is not subject to the objections discussed above. Neither is the charge subject to a constitutional objection based upon its classification as a narcotic drug. Although methadone, in the federally required formulation could perhaps more appropriately have been treated by the Legislature as a ‘narcotic preparation’, as discussed below, there is nothing unreasonable or irrational in the classification of methadone as a ‘narcotic drug’ together with other substances listed in Public Health Law schedules I and II.

The drugs which are classified as ‘narcotic preparations’ are subject to a maximum class C felony charge for possession or sale. A second similar offense increases the grade of offense to a class B felony.

The controlled substances presently subject to the narcotic preparation classification are those in schedules III(b) and III(c) of Article 33 of the Public Health Law and include Nalorphine, a narcotic antagonist used in the treatment of addicts and therapeutic formulations.

While the similarities and dissimilarities in chemical properties among the narcotic drugs, narcotic preparations and methadone are significant to the ultimate legislative decision as to how diluted methadone should be classified, counsel points to other factors which warrant consideration. Of particular significance is the fact that almost all of the pending methadone sale cases involve former heroin addicts who have sold a portion of their take-home supply and ‘stretched’ the balance to cover their own needs.

Thus, the seller of his own clinic-supplied methadone is limited, at the maximum to two or three ten dollar sales a week. The person selling illicitly acquired drugs, on the other hand, suffers from no such restriction. Thus, it reasonably can be predicted that the person who is caught selling ten dollars worth of heroine or cocaine has access to more drugs, and thereby poses a greater threat to the community.

Additionally, it should not pass unnoticed that the persons selling part of their program-supplied methadone are addicts who are making an effort to overcome their addiction. That some should falter by selling a few dollars worth of their state-supplied marijuana to an undercover officer posing as an addict is unremarkable and suggests a need for understanding and compassion greater than the mandatory life imprisonment required by the statute. However these are arguments which should be advanced to the Legislature, not the courts.

Dangerous drugs, by the word itself are dangerous, we should not use or try these stuffs.

Here in Stephen Bilkis and Associates, we have New York Drug Crime lawyers who are always available to guide and give you pieces of advice. Just ask them and they will give you an instant advice. Our New York Criminal attorneys are also here to protect your rights even when you are an accused in a criminal case.

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