Like all other states, New York provides for its own set of laws dealing with possession and sale of controlled substances. As it can be expected, both the nature of the offense and its accompanying punishment are increased in cases where a defendant has been charged with possession with the intent to sell as opposed to possession for use. Call Jeffrey Cohen at 718-275-5900 with experience in Queens, Manhattan, Bronx, Brooklyn, Nassau, and Suffolk Counties.
Defining and Proving Drug Possession
When an individual is charged with drug possession it usually means that the alleged suspect was in physical possession of the drugs when arrested. However, possession of a controlled substance can also be shown where the suspect did not actually hold the controlled substance in his possession. There are requirements for this situation, referred to as “constructive possession.” The controlled substances must be found in or on the suspect’s property, and that person had 1) knowledge of the presence of the controlled substances; and 2) ability to control them.
Constructive possession can be proven by incriminating circumstances accompanying the arrest. This type of evidence, commonly known as “circumstantial evidence” is evidence from which an inference of culpability can be drawn as opposed to direct evidence of the offense. For example, it is not necessary for the prosecutor to show that the party had actual knowledge of the presence of the controlled substances. Instead, if the drugs were found in a location where they could not have been missed on a daily basis (in the refrigerator for example), an inference can be drawn that the suspect was aware of their existence. A common misconception promoted by television is that circumstantial evidence lacks the strength to be consider valid proof of culpability. To the contrary, circumstantial evidence is just as strong as direct evidence so long as a reasonable person can draw an inference of guilt from the evidence.
The second element to a charge of drug possession with intent to sell, is the mental element or the “intent” part. What this means is there must be some mental intent to illegally sell or distribute the drugs to others. Again, this is generally demonstrated by circumstantial evidence, although an attempt to sell to a police officer or evidence obtained from buyers may be used as direct evidence of intent. As stated above, circumstantial evidence of intent to sell controlled substances to others include possessing quantities of the substance greater than would be reasonable if the drug was for personal use, having possession of paraphernalia used for packaging or distributing drugs such as scales to weigh drugs, possession of large amounts of cash, or exhibiting behaviors such as multiple brief meetings with visitors to your home. While some of this evidence is not sufficient in and of itself to provide circumstantial evidence of intent to sell, when put together, a valid inference can be drawn from accumulation of these factors. For example, having multiple visitors to your house is not sufficient, but itself to show that you intended to sell controlled substances. However, having baggies along with a scale with the visitors will be sufficient to make such an inference even if the amount of controlled substances on hand is very small. The inference being that the controlled substances had already been sold and disposed of by the time the arrest was made.
On the other hand, a defendant need not actually have sold anything in order to be charged with possession with intent to sell since the actual sale of the controlled substance is not an element of the offense. The mere fact of intending or planning to sell/distribute the drug – even for free – may be sufficient to support the charge, as long as the prosecutor can show convincingly that you had the mental intention to do so.
Legal Defenses for Possession with Intent Charges
There may be several viable defenses available against a charge of drug possession with intent to distribute. One must keep in mind, of course, that the circumstances in every case is different.
First, lack of possession is a common defense. In fact, since possession of the controlled substance is an element of the crime, it is up to the prosecutor to show that the defendant was in possession of the controlled substance. Hence, if a criminal defense attorney can cause doubt in the mind of the jury that a defendant was ever in possession of the controlled substance, a possession with intent to sell charge must fail.
This defense is best used in a “constructive possession” situation. This is because under the constructive possession circumstances an experienced criminal defense attorney can more easily challenge whether the defendant had knowledge of the presence of the drug. In criminal cases, the standard of proof for the prosecution is the very high “beyond a reasonable doubt.” That means the job of the criminal defense attorney to create a doubt in the mind of the jury. In constructive possession cases, that doubt can arise by offering to the jury an alternative explanation for the existence of the controlled substance on the property of the defendant. If the alternative explanation is reasonable, a doubt must be created in the mind of the jury and a not guilty verdict must be rendered resulting in the acquittal of the defendant.
A lawyer may also defend on the basis that the defendant had no intent to sell the drugs. If it can be shown that a defendant was in possession of the drugs for personal use only, and that there was no intent to actually distribute, the defendant would be subject to punishment that is typically much less severe than the sentences imposed for sales and intent to sell.
Suppressing Evidence in Possession with Intent to Distribute Cases
Under some circumstances, it may be possible to exclude evidence of culpability from the trial preventing the prosecution to prove one or more of the elements of the offense, thereby guaranteeing an acquittal. To do this, it will be the job of the defense counsel to closely examine the circumstances under which the evidence was discovered. If the evidence was discovered in violation of any of the defendant’s rights, that evidence, any evidence whose discovery was solely dependent on discovery of the first illegally obtained evidence and all conclusions and inferences drawn from the evidence are excluded from trial. This is sometimes referred to as the “fruit of the poisonous tree” doctrine.
For example, the Fourth Amendment of the U.S. Constitution requires any searches or seizures of people and their property to be lawful. With very narrow exceptions, to be considered “lawful” under the Fourth Amendment, a search must have been conducted with a warrant, previously obtained from a judge, and having shown to the judge that probable cause for the warrant exists. A search that does not comply with the Fourth Amendment right against unlawful search and seizures resulting in discovery of evidence of culpability, regardless of strength of the evidence, is unlawful and as a result, the evidence from the search is discarded. Further, any other evidence whose discovery was solely the result of the unlawful search will similarly be discarded as the fruit of the poisonous tree. One of the main exceptions to this rule is when search is pursuant to the permission of the defendant. For this reason, permission for a search must ALWAYS be denied. The importance of this principle cannot be overstated.
Additionally, evidence obtained in violation of a defendant’s Fifth Amendment right against self-incrimination is likewise disallowed. We have all seen this on television or movies. When an arrest is being made, the police or other law enforcement agency making the arrest are obliged to warn suspects of their Miranda rights before questioning occurs if the suspect is in custody, i.e. – in situations where the suspect is NOT free to leave. “Miranda warnings” are the reciting of a suspect’s rights, including the right to remain silent, the right to a lawyer whether or not they can afford one, etc. Miranda warnings also inform the suspect that any statements s/he makes to police may be used against him or her in court. As a result, the first rule upon an arrest must be, stay quiet. Ask for an attorney and then stop talking.
There are several classes of controlled substances, depending on the potency effect, and most importantly, potential for abuse of the drugs. Marijuana is schedule I drug and Cocaine is classified as a schedule II s of drugs.
The following is a description of laws and penalties with regards to possession, sale and trafficking of marijuana in the State of New York.
|Less than 25 g (first offense)||not classified||N/A||$ 100|
|Less than 25 g (second offense)||not classified||N/A||$ 200|
|Less than 25 g (third offense)||not classified||15 days||$ 250|
|25 g – 2 oz||misdemeanor||3 mos||$ 250|
|2 – 8 oz||misdemeanor||1 year||$ 250|
|8 oz – 1 lb||felony||4 years||$ 250|
|1 – 10 lbs||felony||7 years||$ 250|
|More than 10 lbs||felony||15 years||$ 250|
|In public view||misdemeanor||90 days||$ 250|
|Less than 2 g without profit||misdemeanor||3 mos||$ 500|
|Less than 25 g||misdemeanor||1 year||$ 1,000|
|25 g – 4 oz||felony||4 years||$ 5,000|
|4 oz – 1 lb||felony||7 years||$ 5,000|
|More 1 lb||felony||15 years||$ 15,000|
|Using a child to assist||felony||4 years||$ 5,000|
|To a minor||felony||7 years||$ 5,000|
|Any amount||felony||15* – 25 years||$ 0|
|* Mandatory minimum sentence|
|Cultivation of Marijuana|
|Any amount*||misdemeanor||1 year||$ 1,000|
|* Cultivating marijuana is also possessing marijuana under current case law. See penalty details section below.|
|Hash & Concentrates|
|Possession of up to 1/4 oz||misdemeanor||1 year||$ 1,000|
|Possession of 1/4 – 1 oz||felony||7 years||$ 5,000|
|Possession of 1 oz or more||felony||15 years||$ 15,000|
|Sale||felony||15 years||$ 15,000|
|Possession or sale of scales or balances for the purpose of weighing or measuring marijuana||misdemeanor||1 year||$ 0|
|Subsequent offense||felony||7 years||$ 5,000|
|Civil Asset Forfeiture|
|Property can be seized if convicted of a felony.|
|Mandatory driver’s license suspension of 6 months for youthful offenders.|
Possession for Personal Use
For a first offender, possession of up to 25 grams of marijuana is punishable by a fine of $100. If an additional offense occurs within three years of the first offense, possession of up to 25 grams of marijuana is punishable by a fine of $200. For the third or subsequent offense(s) within a three-year period, possession of up to 25 grams of marijuana is punishable by a fine of $250 and/or imprisonment of 15 days or less. Possession of marijuana in excess of 25 grams but less than 2 ounces is a class B misdemeanor and is punishable by no more than 3 months imprisonment. Possession of marijuana in excess of 2 ounces but less than 8 ounces is a class A misdemeanor and is punishable by no more than 1 year of imprisonment. Possession of marijuana in excess of 8 ounces but less than 16 ounces is a class E felony and is punishable by no more than 4 years of imprisonment. Possession of marijuana in excess of 16 ounces but less than 10 pounds is a class D felony and is punishable by no more than 7 years of imprisonment. Possession of marijuana in excess of 10 pounds is a class C felony and is punishable by no more than 15 years of imprisonment.
Use or Display of Marijuana
Marijuana open to public view or being burnt in public is a Class B misdemeanor punishable by a fine of $250 with a maximum sentence of 90 days.
Exchange without payment of less than 2 grams of marijuana and/or one marijuana cigarette is a class B misdemeanor and is punishable by no more than 3 months imprisonment.
Sale of marijuana in any amount to a person under 18 years of age is a class D felony and is punishable by up to 7 years of imprisonment.
Sale of marijuana in an amount less than 25 grams is a class A misdemeanor and is punishable by no more than 1 year of imprisonment. Sale of marijuana in an amount greater than 25 grams but less than 4 ounces is a class E felony and is punishable by up to 4 years of imprisonment. Sale of marijuana in an amount greater than 4 ounces but less than 16 ounces is a class D felony and is punishable by up to 7 years of imprisonment. Sale of marijuana in excess of 16 ounces is a class C felony and is punishable by up to 15 years of imprisonment.
Using a child to assist in the sale of marijuana is a class E felony and is punishable by no more than 4 years of imprisonment. This offense includes hiding marijuana on a child or otherwise directing a child to assist in a marijuana sale.
A person is considered a major trafficker of marijuana if they do one of the following: Act as the director of an organization, which sells $75000 worth of marijuana over the course of a year or less; collect $75000 or more from sales of marijuana over the course of 6 months or less; possess with intent to sell $75000 or more of marijuana over the course of 6 months or less. If one or more of the above are satisfied the person may be charged as a major trafficker, this is a class A-I felony and is punishable by 15-25 years of imprisonment.
Growing cannabis is a class A misdemeanor and is punishable by up to 1 year of imprisonment and/or a fine of up to $1000.
*While technically cultivation of any amount of marijuana is a misdemeanor, a person who cultivates marijuana is also “possessing” marijuana under current case law. Parmeter v. Feinberg affirms the state’s ability to charge a person with the crime of “cultivation” and “possession” any time a person is caught growing marijuana. This means the more marijuana that a person cultivates the more severe the degree of possession that the state can charge.”
Hash & Concentrates
The term ‘Marihuana’ as used in the New York Criminal code is defined as including both plant-form Marihuana and Concentrated Cannabis. Marihuana is listed as a Schedule 1 drug on the New York Controlled Substances Schedule. Concentrated Cannabis is defined as the separated resin of the Cannabis plant, whether purified or raw, or any mixture or preparation containing at least 2.5% THC. Unlike most other states, New York uses the term Tetrahydrocannabinols exclusively to refer to synthetic cannabinoids, not Concentrates. New York does not apply its Marihuana decriminalization law to Concentrated Cannabis. There is no explicit justification for this in the statute, but specific penalties for offenses involving Concentrated Cannabis are separated from those involving plant-form Marihuana and the distinction is noted in caselaw.
See: New York Pen. Code §220, New York Pub. Health §3302, New York Pub. Health §3306, New York Pen. Code §55.10, New York Pen. Code §70.00, New York Pen. Code §80.00, New York Pen. Code §80.05, New York Pen. Code §70.15, People v. Allen, 92 N.Y.2d 378 (Ct. App. N.Y. 1998).
Possession of any amount of Concentrated Cannabis up to one-fourth of an ounce is a class A Misdemeanor, punishable by up to 1 year imprisonment and a fine not to exceed $1000.
Possession of between one-fourth of an ounce and one ounce of Concentrated Cannabis is a class D Felony, punishable by up to 7 years imprisonment and a fine of no more than $5000.
Possession of one ounce or more of Concentrated Cannabis is a class C Felony, punishable by up to 15 years imprisonment and a fine of no more than $15,000.
The presence of any controlled substance in an automobile creates a presumption of knowing possession for all occupants of the vehicle. This principle does not apply if the controlled substance is on the person of one of the passengers and the substance is hidden from the view of other passengers.
The presence of Marihuana (including Concentrated Cannabis) in open view in a room, other than a public place, under circumstances that evince an intent to manufacture, package, or otherwise prepare the Marihuana for sale gives rise to a presumption of knowing possession for all those in close proximity to the Marihuana at the time it is found.
Sale of any amount of Concentrated Cannabis is a class C Felony subject to no more than 15 years imprisonment and a fine not to exceed $15,000.
Sale of any amount of Concentrated Cannabis on a school bus, on the grounds of a child day care or educational facility, or in a publically accessible area within 1000 feet of the real property line of such a facility is a class B Felony subject to no more than 25 years imprisonment and a fine not to exceed $30,000.
Sale of any amount of Concentrated Cannabis by a person 21 years old or more to a person 17 years old or younger is a class B Felony subject to no more than 25 years imprisonment and a fine not to exceed $30,000.
Possession or sale of scales or balances for the purpose of weighing or measuring marijuana is a class A misdemeanor and is punishable by up to 1 year of imprisonment. Any subsequent conviction of possession or sale of paraphernalia is a class D felony and is punishable by up to 7 years imprisonment and a fine of up to $5000.
If convicted of a felony offense the following may be forfeited, unless the forfeiture would be disproportionate from what the defendant gained from the offense: the proceeds from the offense, instruments used in the offense (including a car).
Mandatory suspension for a period of six months where the holder is convicted of, or receives a youthful offender or other juvenile adjudication in connection with any crime in violation of the Federal Controlled Substances Act.
Mr. Cohen and his firm will evaluate your case, examine the allegations, help you prepare a defense, and attack the Prosecution’s charges and allegations. He will help you understand what the steps to defending your case are. Our experience and in-depth analysis will help guide you. Call 718-275-5900 for more information about Drug Cases in New York or to schedule your free consultation with a New York Criminal Defense lawyer from The Law Office of Jeffrey D. Cohen.