Articles Posted in Narcotics and Controlled Substance Offenses

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A recent article in CNN declared that 60% of the cigarettes sold in New York had been smuggled in from out of state so as to avoid the onerous New York state cigarette taxes. This is somewhat unsurprising, given that New York state imposes a $4.35 tax per pack, and New York City an additional $1.50 (making some packs as expensive as $12 each). Indeed, New York state’s cigarette taxes are the highest in the country; in contrast, Missouri imposes a tax of just 17 cents per pack.

Prosecutors have taken notice and are pursuing traffickers of untaxed cigarettes. For example, the Queens District Attorney’s Office recently announced an arrest of a major trafficker of untaxed cigarettes. The applicable criminal statute for smugglers and traffickers of untaxed cigarettes is New York State Tax Law § 1814, which can apply either Class A misdemeanor or Class E felony charges to the conduct.

New York State Tax Law § 1814 states:

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Despite the improvements in drug-detecting technology and processes – as well as the steep criminal penalties for those caught importing drugs into the United States – the drug smuggling business still remains lucrative enough to cause many people to attempt to import drugs through commercial airline flights. When smugglers are caught, however, the cases can be prosecuted either federally or at the state level.

In New York and New Jersey, when drugs are discovered in someone's luggage, for example, the subsequent arrest might be referred to either the local District Attorney's Office (the Queens DA for LaGuardia and JFK) or to the nearest U.S. Attorney's Office (the US Attorney for the Eastern District of NY for the New York airports, or the US Attorney for the District of New Jersey for Newark Airport). In the former case, the matter will be prosecuted under state law, and in the latter, under federal law. We find in our experience that arrestees on incoming flights from abroad tend to be referred more often to the federal authorities, whereas domestic flights usually go to the local authorities, but this is certainly not always the case.

Under New York state law, the applicable charge is contained in Penal Law Chapter 220 and depends both on the type of illegal substance being smuggled and the quantity possessed. In addition, a person's charges can be more serious if there is evidence of an "intent to sell" the narcotics; obviously, a large quantity of narcotics can be evidence of such an intent to sell, but possession of a small quantity of narcotics – even just one small bag – can still be prosecuted as an "intent to sell" felony in cases in which, for example, the arrestee admits that he intended to sell the drugs in his possession.

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photo (2)Many of our clients come to us after being issued Desk Appearance Tickets (“DAT”‘s) charging them with cocaine or other drug possession (the charge is usually “Criminal Possession of a Controlled Substance in the Seventh Degree” in violation of Penal Law section 220.03). Most of these clients have just experienced their first arrest and are scared and embarrassed, not only because they’ve been handcuffed and detained for several hours, but because they are currently facing prosecution for a class “A” misdemeanor. The two pressing questions these clients usually have are: “what is going to happen to me” and “am I going to have a permanent mark on my record?” The answer to these questions depends on a variety of factors including the specific facts of the case and the client’s prior arrest history. Obviously, the first step for any person in this situation is to hire a lawyer who is experienced in handling these types of cases so as to avoid incurring any negative marks.

The first inquiry judges and prosecutors tend to make pertains to whether or not this is the client’s first arrest. A person who walks into court with no record will be in a better position to have their case “adjourned in contemplation of dismissal”, meaning the case will be dismissed and then sealed after a period of six months, assuming the client sustains no new arrests during that time. Client’s who receive such adjournments (“ACD”s) are usually required to complete community service or some form of drug treatment. A key benefit to an “ACD” is that there is no allocution (factual admission of guilt) and at the end of the six months the case is dismissed – rendering the arrest and prosecution a nullity. While this is obviously an ideal situation, clients who come into court on their second or third arrests will be less likely to receive such a favorable disposition in their case, and more aggressive steps will need to be taken in order to achieve the same goals. In addition to highlighting a client’s lack of/minimal criminal record, it is also helpful for an attorney to gather information about the client’s employment status, educational background, and any other relevant indicia of good character in order to persuade the judge or prosecutor that the client is deserving of a non-criminal disposition. The important thing to keep in mind is that the facts of every case are different. It’s up to your lawyer to highlight the relevant positive factors when making a solid pitch in order to secure the best positive outcome in any case.

If you or someone you know has been arrested or issued a desk appearance ticket, contact an experienced criminal lawyer immediately and set up a consultation so that you can adequately prepare your defense.

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In response to the growing number of criminal incidents involving individuals under the influence of bath salts, both Houses of Congress passed S.3187, which President Obama signed off on shortly thereafter in July 2012. Subtitle D specifically places a federal ban on the use, possession, or manufacturing of synthetic drugs, that up until recently were sold legally in stores. The compounds mephedrone and methylenedioxypyrovalerone (MDPV) – both contained in what are commonly known as bath salts – were two of the roughly thirty known compounds newly classified under Schedule I of the Controlled Substances Act. In addition, the law bans other compounds that could potentially be produced in the future, or have been created, but are not currently being used by manufacturers.

Are bath salts illegal in New York State?

Yes, although bath salts were once legally sold in stores, this is no longer the case; Gov. Cuomo recently passed legislation adding the ingredients found in bath salts to Schedule I of the Public Health Law. Under New York state law, there are five Schedules of controlled substances (contained in Public Health Law § 3306), and all of the controlled substances listed therein are illegal to possess without a prescription. Some of the typical ingredients used in bath salts now fall under Schedule I, with methylendioxypyrovalerone (MDPV) being one ingredient in particular and mephedrone being another. Notably, even if the ingredient used is not expressly listed in the Public Health Law under § 3306, under § 3306(a) it states that: “Schedule I shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name, listed in this section.” Moreover, someone who unlawfully possesses a controlled substance in New York is probably subject to prosecution for some violation of Penal Law Chapter 220. Thus, a possessor of a controlled substance containing a banned ingredient cannot avoid criminal prosecution by claiming that the “street name” of his contraband is not specifically mentioned in the Public Health Law.

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As former prosecutors who now practice criminal defense, we have collectively dealt with hundreds upon hundreds of drug cases over the years. Throughout these years each of us has seen people from all backgrounds and professions walk through the courtroom doors to face drug charges. Whether the person is arrested and “put through the system,” or issued a desk appearance ticket (“D.A.T.”) to return to court on a later date, the experience can be a harrowing one and the consequences can be embarrassing and even devastating to one’s career and/or family life. The silver lining is that there are things that a lawyer can do to dampen the blow of a drug arrest and minimize the detrimental consequences it may have on your life, both personal and professional. This blog deals with cases involving small amounts of cocaine (other posts deal with more serious felony and weight charges) but it is important to remember that no matter how small the amount of any drug, so long as there is enough of the substance for the NYPD to test, a charge for drug possession will stick. What may appear to you to be residue may still be enough for law enforcement to pin a misdemeanor on you.

First, a look at the applicable statue for misdemeanor drug offenses – if you have been issued a D.A.T. for simple drug possession, this is most likely the charge that you face:

S 220.03 Criminal possession of a controlled substance in the seventh degree.

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The short answer to the question above is: probably, but maybe not. If you have been issued a Desk Appearance Ticket in New York City, the chances are that your case is an unusual misdemeanor that required some investigation by the prosecutor, or you are first-time offender charged with shoplifting, theft of services (like jumping a turnstile, for example), marijuana possession in public, orlow-level possession of a controlled substance. If your case falls into the latter category (shoplifting [Penal Law 155.25], theft of services [Penal Law 165.15], marijuana possession in public [Penal Law 221.10], or low-level drug possession [Penal Law 220.03]), and you have a genuine hardship in appearing (say, you live in a far-away state or a foreign country), you may be able to give an affidavit to an attorney authorizing him to appear on your behalf and accept a pre-arranged disposition on your behalf. This is only true in some counties and in certain types of cases and needs to be arranged with the prosecutor in advance.

If you or a loved one have been given a Desk Appearance Ticket, you should contact experienced Desk Appearance Ticket attorneys who routinely handle a wide variety of Desk Appearance Tickets and have represented countless clients from out-of-state and foreign countries faced with the prospect of long and expensive trips for the sake of quick appearances in court on minor charges. If you are unable to appear in court for your arraignment because of the distance or hardship, they may be able to help you.

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As former prosecutors who now practice criminal defense, we have collectively dealt with hundreds upon hundreds of drug cases over the years. Throughout these years each of us has seen people from all backgrounds and professions walk through the courtroom doors to face drug charges. Whether the person is arrested and “put through the system,” or issued a desk appearance ticket (“D.A.T.”) to return to court on a later date, the experience can be a harrowing one and the consequences can be embarrassing and even devastating to one’s career and/or family life. The silver lining is that there are things that a lawyer can do to dampen the blow of a drug arrest and minimize the detrimental consequences it may have on your life, both personal and professional. This blog deals with cases involving small amounts of cocaine (other posts deal with more serious felony and weight charges) but it is important to remember that no matter how small the amount of any drug, so long as there is enough of the substance for the NYPD to test, a charge for drug possession will stick. What may appear to you to be residue may still be enough for law enforcement to pin a misdemeanor on you. In any event, you should contact a criminal defense attorney who handles such cases immediately.

First, a look at the applicable statue for misdemeanor drug possession – if you have been issued a D.A.T. for simple drug possession, this is most likely the charge that you face:

S 220.03 Criminal possession of a controlled substance in the seventh degree.

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The federal government has designated the New York and New Jersey area as a “high intensity drug trafficking area” (HIDTA), and as such, the prosecution of drug trafficking in New York and New Jersey is a high priority for federal law enforcement officers. Federal agents are especially well-funded and well-equipped in HIDTAs like New York and New Jersey, and they typically are very patient and thorough in building cases against entire organizations before indicting individuals or making arrests.

Types of Federal Drug/Narcotics Cases

In the Federal criminal justice system, narcotics and controlled substances cases are generally prosecuted under 21 U.S.C.§ 841 (Chapter 13 of Title 21 of the United States Code). That provision makes it illegal to “manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance”. “Controlled substances” not only includes obvious narcotics – cocaine, crack-cocaine, and heroin – but also marijuana, steroids/HGH (human growth hormone), methamphetamines like “crystal meth”, ecstasy (also known as methylenedioxymethamphetamine or MDMA), date rape drugs such as GHB (Gamma-hydroxybutyric acid), and prescription drugs like oxycontin etc., among others. The full list of federal controlled substances can be accessed here.

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The arrest of a friend or loved one often happens unexpectedly. The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set. This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.

First of all, the question may arise, “What is bail?” Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections. In most cases, that would be an amount of money designated by the judge in either cash or bond. The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all. This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges. Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes. Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance. This is sometimes called “ROR.” In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender. The criteria that the judge will consider is set forth in the Criminal Procedure Law:

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The most serious drug-related felonies in New York state law are Operating as a Major Trafficker (Penal Law Section 220.77, the "Kingpin" Statute), Criminal Possession of a Controlled Substance in the First Degree (Penal Law Section 220.21) and Criminal Sale of a Controlled Substance in the First Degree (Penal Law Section 220.43). As Class-A1 felonies, they are punishable by a minimum of 8 years in state prison for first-time offenders, and by as many as 20 years. (Unfortunately, people charged with these crimes are ineligible for Judicial Diversion- the program whereby drug offenders are given an opportunity to attend a drug rehabilitation treatment program instead of prison.)

For more on the "Kingpin" statute, or Operating as a Major Trafficker (Penal Law Section 220.77), click here.

A person is guilty of Criminal Possession of a Controlled Substance in the First Degree when he or she knowingly and unlawfully possesses: