With the advent of a societal shift in favor of legalizing marijuana and other controlled substances, people may be ill-informed or misguided regarding the real consequences of drug possession and distribution.
Syracuse Drug Offense Framework
Syracuse separates controlled substance charges from marijuana charges (even though marijuana is also a controlled substance). See Penal Code Article 220 and 221 respectively. Both charges require a prosecutor to prove beyond a reasonable doubt the following elements of the offense of drug possession:
- That the substance was a controlled substance;
- That the defendant possessed the substance;
- That his possession was knowing; and
- That the possession was unlawful.
A Syracuse prosecutor can prove drug possession in one of two ways, “actual possession” or “constructive possession.” “Actual possession” is when the defendant is caught “red handed,” so to speak, with the drugs in his pocket, or in his socks for instance, where he physically possesses it. “Constructive possession” on the other hand is where the defendant doesn’t physically possess the controlled substance but has control over the place or person where the drugs are found. Think center console of a car, or top drawer of defendant’s dresser at home.
Stiff penalties still remain the reality in New York. For example, a conviction of a Class A-1 felony will carry a term of imprisonment of 8 to 20 years and fines totaling $100,000. For the prosecution to succeed, they must prove that the defendant possessed eight or more ounces of substances containing a narcotic drug. Class B through E felonies carry sentences of between a minimum of one year to a maximum of 1 and a half to 9 years, with fines ranging from $15,000 to $30,000 for Class B and C felonies.
Often times, prosecutors charge controlled substance cases as conspiracies. This can complicate things enormously in a case ultimately exposing a defendant to significantly more prison time if convicted. Conspiracy, in essence, is an agreement between two or more people to commit an unlawful act. Drug conspiracy indictments can be vast in scope, charging the top kingpin all the way down to the street level dealer, all in one indictment. Often times a defendant will be held accountable for drug quantity or assaults or even murders committed by other co-conspirators the defendant wasn’t even aware of.
Syracuse Drug Crimes Involving Guns
- 265.02 Criminal possession of a weapon in the third degree
A person is guilty of criminal possession of a weapon in the third degree when:
(9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction.
Subdivision 21 provides as follows: “Drug trafficking felony” means any of the following offenses defined in article two hundred twenty of this chapter: violation of use of a child to commit a controlled substance offense as defined in section 220.28; criminal sale of a controlled substance in the fourth degree as defined in section 220.34; criminal sale of a controlled substance in the third degree as defined in section 220.39; criminal sale of a controlled substance in the second degree as defined in section 220.41; criminal sale of a controlled substance in the first degree as defined in section 220.43; criminal sale of a controlled substance in or near school grounds as defined in section 220.44; unlawful manufacture of methamphetamine in the second degree as defined in section 220.74; unlawful manufacture of methamphetamine in the first degree as defined in section 220.75; or operating as a major trafficker as defined in section 220.77.
Criminal Possession of a weapon in the third degree is a Class D Felony and can carry a sentence of up to 7 years.
Drug Manufacturing and Cultivation in Syracuse
The Penal Law addresses the manufacture of methamphetamine and the possession of precursor materials used to manufacture it. For other controlled substances regarding manufacturing and cultivation, the possession aspects of the penal law apply.
Prescription Drug Crimes in Syracuse
In recent months a New York based doctor was sentenced to 78 month in federal prison for illegally authorizing the distribution of tens of thousands of oxycodone pills. Jeffrey Gundel, an orthopedic surgeon, was sentenced on January 25, 2016 for writing over 200 prescriptions for unwarranted reasons. The total number of pills amounted to 59, 520. Experts agree that prescription pain medication often leads to addiction to opiates, which often leads to heroin addiction when the pills run out. http://www.dea.gov/divisions/nyc/2016/nyc012516.shtml
Statutory Framework in Syracuse
“Criminal diversion act” means an act or acts in which a person knowingly: (a) transfers or delivers, in exchange for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it; or (b) receives, in exchange for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the seller or transferor is not authorized by law to sell or transfer such prescription medication or device; or (c) transfers or delivers a prescription in exchange for anything of pecuniary value; or (d) receives a prescription in exchange for anything of pecuniary value.
S 178.05 Criminal diversion of prescription medications and prescriptions; limitation.
- The provisions of this article shall not apply to:
(a) a duly licensed physician or other person authorized to issue a prescription acting in good faith in the lawful course of his or her profession; or (b) a duly licensed pharmacist acting in good faith in the lawful course of the practice of pharmacy; or (c) a person acting in good faith seeking treatment for a medical condition or assisting another person to obtain treatment for a medical condition.
No provision of this article relating to the sale of a prescription medication or device shall be deemed to authorize any act prohibited by article thirty-three of the public health law or article two hundred twenty of this chapter.
S 178.10 Criminal diversion of prescription medications and prescriptions in the fourth degree.
A person is guilty of criminal diversion of prescription medications and prescriptions in the fourth degree when he or she commits a criminal diversion act. Criminal diversion of prescription medications and prescriptions in the fourth degree is a class A misdemeanor which carries a prison term of up to 1 year.
S 178.15 Criminal diversion of prescription medications and prescriptions in the third degree.
A person is guilty of criminal diversion of prescription medications and prescriptions in the third degree when he or she: commits a criminal diversion act, and the value of the benefit exchanged is in excess of one thousand dollars; or commits the crime of criminal diversion of prescription medications and prescriptions in the fourth degree, and has previously been convicted of the crime of criminal diversion of prescription medications and prescriptions in the fourth degree.
Criminal diversion of prescription medications and prescriptions in the third degree is a class E felony which carries a prison term of up to 4 years.
S 178.20 Criminal diversion of prescription medications and
Prescriptions in the second degree is when a person is guilty of criminal diversion of prescription medications and prescriptions in the second degree when he or she commits a criminal diversion act, and the value of the benefit exchanged is in excess of three thousand dollars.
Criminal diversion of prescription medications and prescriptions in the second degree is a Class D felony which carries a prison sentence of up to 7 years.
S 178.25 Criminal diversion of prescription medications and
Prescriptions in the first degree is when a person is guilty of criminal diversion of prescription medications and prescriptions in the first degree when he or she commits a criminal diversion act, and the value of the benefit exchanged is in excess of fifty thousand dollars.
Criminal diversion of prescription medications and prescriptions in the first degree is a Class C Felony which carries a prison term of up to 15 years.
Possession and Presumptions in Syracuse
In certain scenarios, people traveling in vehicles where drugs or weapons are found, say under a seat or in the center consul, can be charged with possession even if they didn’t know the drugs or weapons were there. For example, you’re a passenger in a vehicle that is stopped by police. The driver has an outstanding warrant. The police search the vehicle and find cocaine in the center consul. The cocaine is not yours, nor did you know it was there. Under Penal Law 220.25(1) there is a presumption under the law that you (and everyone else in the vehicle) possessed that cocaine. Same thing applies for firearms under Penal Law 265.15 (3). This presumption of possession does not apply to drug paraphernalia or marijuana.
Conclusion
Top notch defense attorneys are required in these complex cases to stand up to the enormous power of the government, a government that at times is overzealous in its charging decisions.
