Defending a Felony Drug Case

CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE – FRUIT OF THE POISONOUS TREE AND THE ELEMENT OF POSSESSION, HOW TOP NEW YORK CRIMINAL LAWYERS DEFEND A FELONY DRUG CASE

As all experienced New York drug possession lawyers know, under both the New York State and Federal Constitutions, well-defined rules dictate both how and when law enforcement may search a person or property for contraband. In searches involving a court-signed warrant, the warrant must be sufficiently clear on its face of the place to be search and the things to be seized so as to prevent “a general, exploratory rummaging” by police. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). And in cases where there is no warrant, the state has the burden of establishing an exception from the Fourth Amendment’s warrant requirement or risk crucial evidence – in these cases, the drugs – being suppressed and deemed inadmissible at trial. Because there can be no drug possession in the absence of the drugs, it is not uncommon for misdemeanor and felony drug offenses to be charged by prosecutors only to be later dismissed as a result of an unconstitutional search and seizure by police.

Why dismissals and favorable outcomes in drug possession cases often turn on the so-called “technicalities” of a search and seizure is a partly due to the substantive law of possession. The element of possession in these cases includes both physical possession as well as a legal concept known as constructive possession. People v. Sierra, 45 N.Y.2d 56, 60 (1978). The lack of widespread awareness of constructive possession and how it impacts criminal culpability serves, in the experience of top New York criminal defense attorneys, as one of the biggest points of confusion between clients and their lawyers when defending state charges of drug possession.

The concept of physical possession is easily understood. You may have physical possession of property by holding it your hand or by carrying it on your body or person. All constructive possession requires is that you exercise “sufficient level of control over the area in which the contraband is found or over the person from whom the contraband was seized.” People v. Manini, 79 N.Y.2d 561, 573 (1992). Accordingly, it is not uncommon for multiple persons to be charged with possession of a single stash of drugs so long as it can be shown that at least one had direct custody. People v. Dean, 200 A.D.2d 582 (2nd Dep’t. 1994) (“Even though a defendant may not have physical possession of the drugs, evidence that he was an accomplice to” the person “who did have possession of the drugs is legally sufficient”).

Some illustrative examples of constructive possession is found in various context-specific presumptions set forth by New York’s Penal Law. Under it, drugs found in a car – whether placed in a compartment or left in a backseat – are considered constructively possessed by all occupants of the vehicle. CPL § 220.25 (1). Similarly, drugs left in open view in a room, other than a public place, may, in certain circumstances, be imputed to be possessed by all persons found in close proximity to them. CPL § 220.25 (2).

In the end, many individuals charged with a New York drug offenses are led to believe, both by prosecutors and their lawyers alike, that the law and the evidence against them presents no real options other than accepting the prosecution’s offer of plea or near certain conviction at trial. As there is no one-size-fit-all approach to criminal defense, this could not be further from the truth. Whether through motion practice or negotiation, top New York drug possession attorneys routinely push prosecutors towards a result their clients can live with. While the decision on when and ultimately how to resolve your drug possession case ultimately resides with you, retaining top New York criminal defense lawyers as soon as arrest ensures that decision is made under the best possible circumstances for your case.

Call the attorneys at the Law Offices of Jeffrey Lichtman today at (212) 581-1001 to discuss your case today.