Understanding Criminal Possession of Controlled Substance Cases

A flood of usually lower level, "A Misdemeanor" Criminal Possession of Controlled Substance (Penal Law Section 220.03) cases into Westchester and Putnam County Criminal Courts has brought home the opioid epidemic to Westchester and Putnam counties.  As a result, there is a greater than ever need for understanding about drug possession cases and how they can be addressed.  I have noticed a rising tide of these cases, although many of the cases associated the opioid epidemic in Westchester and Putnam fall into two tragic categories.  

More Young People but Older People Too

First, there are younger people in high school and college, who find their way into the medicine cabinets of relatives or friends' parents and end up using a wide range of painkillers.  Eventually, when the prescription medications can't be gotten in this way, they graduate to buying it, and where the prescription medications aren't available, heroin fills the void.  While younger people have always been a market for illegal drugs, the numbers of young people ending up possessing and using heroin, tragically, is skyrocketing,  And so therefore, tragically, are arrests of young people for criminal possession of controlled substance in the seventh degree (or worse).

The second newer category of people accused of possession of drugs is middle aged and older people who you would never identify as a group at risk for illegal drug possession or sale.  The story for this group is usually fairly similar.  It begins with an injury of some sort, maybe an on the job back injury that resulted in various pain killers being prescribed (or even over prescribed).  One thing leads to another and the person finds that he or she can't exist comfortably without the pain killers.  But now, their doctors cut them off from the pain killers.  Again, people will try to get the same pain killers illegally, but in the strange world in which we live, heroin is often easier to come by.  And so we are seeing a growing group of middle aged and older people being charged with criminal possession of a controlled substance in Westchester and Putnam Criminal Courts.

About the Crime of Drug Possession in New York

Criminal Possession of a Controlled Substance is at first glance a fairly simple and straightforward offense.  There are certain substances that we "control" or regulate.  If you possess one of these controlled substances outside proper authority from a doctor or other licensed medical professional, then you are guilty of a crime.  This is the basic idea and it is really pretty simple and straightforward.  In its most basic form (Criminal Possession of a Controlled Substance in the Seventh Degree) it really is nearly that dead simple.  If you possess some stuff and that stuff turns out to be a controlled substance (like heroin), then you are guilty of the offense unless you have a prescription.

What does the law mean by "Possession"

Possession is actually a trickier concept than most people imagine, 

For example, "possession" does not mean only what you are holding in your hand at the moment that the police are putting handcuffs on you.  The law says that you can be in possession of things that aren't in your hand, or even in your pocket, or on your person in any way. 

And if you think about it, this makes perfect sense.  Your pen is on your desk.  It is still your pen even though it is on your desk.  It doesn't become someone else's pen or nobody's pen simply because you put it down on your desk.  Also, you have never held your car in your hands or kept it in your pocket, but you still believe it is yours, and you would be upset if someone took it.  Possession may be harder or easier to PROVE depending on what the evidence is about where it is found, but that doesn't mean that you can't be accused of possessing something simply because you didn't happen to be holding it when the police arrested you.

Presumption Presumption, What's Your Function?

A real bonus that the Government gets in helping it to prosecute criminal possession of controlled substance cases is that it gets to use a thing called a PRESUMPTION in a couple of very common circumstances: 1) when drugs are found inside someone's car, and 2) when drugs are found inside someone's home.  Basically, New York law says that if you are in a car, for example, and there are drugs in the car, those two facts alone are enough for all of the following to happen:

1. You can be arrested.

2. You can be formally charged with criminal possession of a controlled substance

3. You can be brought to trial

4. The Government can pin its entire case on those two facts (and a lab report showing that the substances were controlled substances)

5. (And this is the big one) Prior to beginning to deliberate (meaning after your lawyer has had his or her last opportunity to argue to the jury), the Judge will affirmatively remind the jury that if they find that you were in the car and the drugs were in the car, they are perfectly free to find you guilty of criminal possession of a controlled substance. (Ouch. This is what makes the presumption such a powerful tool for the Government.)

All five of those things are made possible if you are in a car and drugs are found in that car. 

But wait, there's more...

By the way, "in the car" doesn't mean just in a bag labeled "illegal drugs" that is resting on your lap.  "In the car" for purposes of this automobile presumption means anywhere in the car, including a secret compartment in the trunk of the car, even if the car isn't yours.

Search and Seizure

One of the most fascinating areas of the criminal law, and one of the least understood by non lawyers is the area of illegal search and seizure law.  Essentially, the idea is that the Government is not allowed to benefit in criminal prosecutions from the illegal behavior of its own agents (the police).  This means that if a police officer breaks the law in order to get evidence to use against you in a criminal case, the Government is not allowed to use such tainted evidence, even though that evidence might be perfectly reliable, accurate evidence.  The idea is that we have far more to fear from a Government willing to send out henchmen to break the law than we do from an individual person accused of one individual crime.  Therefore, we try to discourage Government agents from behaving badly by not allowing them to be successful in prosecuting people when they break the law to get evidence.

Search and seizure law is very important in Criminal Possession of a Controlled Substance cases for a couple major reasons.  By its nature, drug possession cases often involve physically small packages of things that are often hidden.  They are hidden in pockets, in cars, in houses, in containers of various sorts, etc, especially in places that society would generally consider to be private and not available for government inspection. 

When things are hidden, then they will be found.  Search and seizure law asks the question, "How was it found?" or "Was it found in accordance with the law?"  This is why, when you have a consultation with a criminal defense lawyer in a criminal possession of a controlled substance case, the criminal defense lawyer will ask you (or should be asking asking you) a series of detailed questions about how exactly it was that the police came to find the substance that they are saying might be a controlled  substance.

Now the public perception of this area of the law of course is what we get from television and movies for the most part.  And what do television and movies tells about how this works?  Well, that the police are hamstrung by insanely complex intricate technicalities that are impossible to follow and still get bad guys and that Judges are constantly having to throw out criminal cases because of minor technical rules violations. 

This is exactly the opposite of the truth.  Reality is that evidence in criminal cases, including evidence of illegal drugs in drug possession cases, is almost never found to have been obtained illegally.  There are several reasons for this that are beyond the scope of this article, but suffice to say that rare indeed is the case where substantial physical evidence is excluded.   

When settlement of a drug possession charge is not possible or the available settlement is unacceptable, the search and seizure issue is often the only realistic hope for the accused.  As noted earlier, possession, especially if the Government has the benefit of one of its presumptions of possession, is pretty simple to establish.  

Intent to Sell and Other More Serious Possession Charges

Drug possession cases start out simple, but changing the amounts involved, or even changing your "intent" at the time that you allegedly possessed the drugs can turn a super simple straightforward possession into a very serious felony charge.  For example,  If a person possesses a small amount of heroin, that is a criminal possession of controlled substance, 7th degree, a class A misdemeanor.  BUT, if at the same time, that person "intends to sell" that small amount of heroin (doesn't matter how small), the person is guilty of a B felony drug possession facing multiple years in prison. 

If you are wondering how the Government can read your mind to know and prove your intent, it can't,  But it can make a case for your intent by proving other things.  For example, if you have scales, little baggies, and promotional flyers advertising heroin for sale with your cell phone number listed, the Government might be able to prove those facts and argue that based on this evidence they have proven your intent to sell.  (By the way, the law allows the Government another one of those presumptions in this area, if you have over a certain amount of drugs, so they don't need to prove anything but the amount sometimes to prove intent to sell.)

Settlement Possibilities

Many people who find themselves accused of Criminal Possession of a Controlled Substance are not looking for their day in court at a trial after about a year or so of legal wrangling, in, for example, a local Westchester Criminal Court.  If settlement is what you are looking for in a criminal possession of controlled substance case in Westchester or Putnam County, then the good news is that there are often possibilities, including the possibility of treatment based solutions that leave you without a criminal record at all.  Especially in response to the opioid epidemic, the Westchester and Putnam Courts and the District Attorney Offices are willing to address many drug possession cases as treatment opportunities as opposed to opportunities to weigh people down with criminal records.  Of course availability of these sorts of settlement opportunities will vary depending on the nature of the charges, the amount of drugs in question, the Government's belief of your involvement in a larger enterprise than may be suggested by the single charge against you, and other factors.

You Need AN Experienced Westchester / Putnam Criminal Defense Lawyer

Drug possession cases involve several seemingly simple, but actually complex legal issues that require experience to be able to manage properly and to your best advantage.  This article barely scratches the surface of an area of the law that is quite sophisticated despite its seeming simplicity.  If you have been accused of a drug possession charge in Westchester or Putnam County criminal court, you would be very well advised to seek out an experienced criminal defense lawyer.  Whether you are hoping to settle the matter with a treatment sort of option or whether you feel as if you have been wrongly accused of possession and are being unfairly victimized by one of the Government's "presumptions" and you want to fight it in court, or whether you feel as if you might have experience illegal police conduct in the way the police located the substances they are accusing you of possessing, you need the help of a criminal defense lawyer who knows these drug possession cases.

Especially if you have no prior criminal history, I have historically been able to find reasonable solutions to drug possession cases, if battling it out in Court on a path toward trial does not appeal to you.

I have practiced criminal defense exclusively and have served NYC, Westchester and Putnam County since 1996.    

I can help you too.

Contact The Law Offices of James Shalley for your free consultation with an experienced Westchester and Putnam Criminal Defense lawyer about a Criminal Possession of Controlled Substance case.

Call:  914-276-2585

Direct Cell / Text:  347-612-9830