What to Do After Receiving a Manhattan Desk Appearance Ticket for Criminal Possession of a Controlled Substance in the Seventh Degree
The author of this article, Matthew Galluzzo is a former Manhattan prosecutor with over 25 years of experience as a criminal lawyer. He has successfully defended dozens of people charged with the possession of controlled substances in courtroom throughout New York City.
Receiving a Desk Appearance Ticket (“DAT”) in Manhattan charging Criminal Possession of a Controlled Substance in the Seventh Degree under New York Penal Law § 220.03 can be frightening and confusing. Although a DAT generally means that the person was released rather than held in custody pending arraignment, it is still a criminal case that should be taken seriously.
A person who receives a DAT should not assume that the case will simply disappear or that the best strategy is to plead guilty immediately. There may be important defenses, diversion opportunities, immigration consequences, and other considerations that should be evaluated before entering a plea.
What Is a Desk Appearance Ticket?
A Desk Appearance Ticket is a written notice directing a person to appear in criminal court at a specified future date and time. New York law permits appearance tickets to be issued for certain offenses rather than requiring the person to remain in custody.
The NYPD specifically identifies Criminal Possession of a Controlled Substance in the Seventh Degree, or Penal Law § 220.03, as an offense for which eligible individuals in Manhattan may be processed for a DAT. NYPD procedures also contemplate diversion for certain people arrested on this charge.
The date and time on the DAT are extremely important. Failing to appear can create additional legal problems, including the possibility of a warrant.
What Is Penal Law § 220.03?
New York Penal Law § 220.03 provides that a person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he or she knowingly and unlawfully possesses a controlled substance. The offense is classified as a Class A misdemeanor.
The statute therefore requires the prosecution to establish, among other things:
- That the defendant possessed the substance;
- That the defendant knew that he or she possessed it;
- That the substance was a controlled substance; and
- That the possession was unlawful.
“Possession” does not necessarily require the police to find drugs physically in a person’s hand or pocket. New York’s jury instructions recognize both physical possession and possession through the exercise of dominion or control over tangible property.
Consequently, the circumstances surrounding the discovery of the alleged drugs can be extremely important.
Do Not Simply Plead Guilty at the First Court Appearance
One of the most important things a person with a Manhattan drug-possession DAT can do is speak with a criminal-defense attorney before deciding how to resolve the case.
At arraignment, the defendant has the right to counsel. New York law also permits a defendant who appears without counsel to request an adjournment to obtain an attorney.
A quick guilty plea may appear attractive because § 220.03 is a misdemeanor rather than a felony. But a conviction can have consequences beyond the sentence imposed by the Criminal Court.
Before pleading guilty, an attorney should consider whether there are grounds to challenge:
- The legality of the police stop;
- The legality of a search or seizure;
- Whether the police had probable cause;
- Whether the defendant actually possessed the substance;
- Whether the defendant knew about the substance;
- Whether the substance is actually a controlled substance;
- Whether the laboratory or chemical evidence supports the charge;
- Whether statements allegedly made by the defendant were lawfully obtained; and
- Whether the accusatory instrument sufficiently establishes the elements of the offense.
New York courts have specifically emphasized that allegations in a § 220.03 case must provide a sufficient factual basis for the prosecution’s claim that the substance was a particular controlled substance.
Ask About Diversion
One particularly important consideration in a Manhattan § 220.03 case is drug-treatment or diversion programming.
NYPD’s current Patrol Guide contains a specific procedure for diverting eligible individuals arrested for Criminal Possession of a Controlled Substance in the Seventh Degree in Manhattan and other participating boroughs. Under the procedure, eligible individuals may be offered drug treatment and rehabilitative services instead of criminal prosecution. Participation is voluntary and requires approval by the District Attorney.
The NYPD states that successful participation can eliminate the need for a court appearance and result in the arrest record being sealed.
That means a person who receives a Manhattan DAT for § 220.03 should ask an attorney immediately whether he or she may qualify for a diversion program.
Eligibility can depend on the particular facts and circumstances of the arrest, including whether there are additional or more serious charges. NYPD’s procedure specifically states that individuals facing additional higher charges are not eligible under that particular diversion procedure.
What Happens at the Arraignment?
If the case proceeds through the normal criminal process, the defendant will generally appear in Manhattan Criminal Court for arraignment.
At arraignment, the court formally addresses the criminal charge and the defendant’s rights. New York law provides that a defendant has the right to counsel at arraignment and at every subsequent stage of the criminal case.
The prosecution may also make a disposition offer, or the defense attorney may begin discussions with the prosecutor regarding possible dismissal, diversion, reduction of the charge, or another resolution.
There is no single outcome that applies to every § 220.03 DAT. The appropriate strategy depends heavily on the facts.
What Are the Potential Penalties?
Because Penal Law § 220.03 is a Class A misdemeanor, it is substantially less serious than a felony drug charge. Nevertheless, it remains a criminal offense.
New York courts recognize that a Class A misdemeanor can carry a maximum incarceration sentence of 364 days under the current sentencing law.
The potential consequences of a case are not limited to incarceration. Depending upon the circumstances and the eventual disposition, a defendant may also face other forms of punishment or conditions.
More importantly, the practical consequences of a conviction can sometimes be much more significant than the sentence itself.
Immigration Consequences Require Special Attention
Non-U.S. citizens should be particularly careful before entering a guilty plea to a drug-possession charge.
A criminal disposition can potentially affect immigration status, visa applications, naturalization, travel, or removal proceedings. The immigration consequences of a particular plea depend upon the person’s immigration history, the precise offense, the controlled substance involved, and the exact disposition.
For that reason, a non-citizen should tell the criminal-defense attorney about his or her immigration status before accepting any plea offer. In appropriate cases, criminal counsel may need to coordinate with an immigration attorney before a disposition is entered.
Do Not Ignore the DAT Because You Were Released
A DAT is not the same thing as a dismissal.
The fact that the police allowed the person to leave does not mean that the criminal case is over. The ticket directs the person to appear in court, and the underlying charge remains pending unless and until the case is dismissed, diverted, or otherwise resolved.
New York law defines an appearance ticket as a notice directing a person to appear in a designated local criminal court at a designated future time in connection with an alleged offense.
The safest approach is to treat the DAT as an important legal document and address it promptly.
What Should You Bring to Your Attorney?
A person receiving a Manhattan § 220.03 DAT should provide the defense attorney with:
- A copy or photograph of the DAT;
- Any paperwork received from the NYPD;
- The exact date, time, and location of the arrest;
- Information about where and how the alleged substance was discovered;
- Information about what the police said or asked;
- Any information concerning a search of a vehicle, apartment, hotel room, bag, or other property;
- Any prescription information that may be relevant;
- Information about prior criminal cases, if any;
- Immigration information, if applicable; and
- The exact court date appearing on the DAT.
The attorney can then investigate the circumstances of the arrest and determine whether diversion, dismissal, motion practice, negotiation, or trial is the most appropriate strategy.
Why Hire Matthew Galluzzo for a Manhattan § 220.03 DAT?
A Manhattan drug-possession DAT may look relatively minor because the defendant has not been held in jail and the charge is a misdemeanor. But the consequences of a criminal conviction can extend well beyond the first court appearance.
Matthew Galluzzo is an experienced New York criminal-defense attorney who represents clients facing criminal charges in Manhattan and throughout New York City. He can investigate the circumstances of a § 220.03 arrest, evaluate potential constitutional and factual defenses, determine whether diversion may be available, communicate with prosecutors, and work toward the best possible resolution.
For someone who has received a Manhattan Desk Appearance Ticket for Criminal Possession of a Controlled Substance in the Seventh Degree, the most important step is to take the DAT seriously, preserve the evidence, avoid discussing the case unnecessarily, and speak with a qualified criminal-defense attorney before appearing in court or accepting a plea offer.