What Are The Most Common Drug Offense Cases That You Handle?
I handle many kinds of drug cases, including possession and sale offenses. Many of the possession cases combine with other crimes, such as traffic offenses, or even assault charges. During the investigation into the other crime, the police sometimes discover the drugs.
How Is A Drug Charge Determined To Be Either A Misdemeanor Or A Felony?
Four factors affect the level of charge: the weight, the type of drug, whether one was trying to sell the drug or merely possessing it, and the location of the sale or possession (i.e., on school grounds) or the age of the person used to make a sale (i.e., use of a child). The legislature defines each crime, and these definitions along with the level of crime can and do change. As there are various factors to consider, we need to look at the allegations and compare them to the statutes to see what level of crime the defendant faces.
What Is An Unlawful Controlled Substance?
Public Health Law § 3306 lists five schedules of controlled substances. With certain very limited exceptions, possession of any of the substances on the five schedules is unlawful. The persons who can possess controlled substances lawfully include medical personal (Public Health Law § 3302-29), persons with a lawful prescription (Public Health Law § 3302-31), common carriers acting within the scope of his or her duties; public officers in possession pursuant to their duties; veterinarians pursuant to their duties (Public Health Law § 3305). Everyone else in possession of the substances listed in Public Health Law § 3306 is in unlawful possession.
What Is Considered Possession, Sale, Distribution And Intent To Distribute Unlawful Drugs?
In New York, a person possesses if he or she has physical possession or otherwise exercises dominion or control over tangible property. (Penal Law § 10-8). A person may possess tangible property in either of two ways.
First, the person may have physical possession of it by holding or by carrying it in or on his or her body or person. This seems simple enough.
But a person may exercise dominion or control over property not in his or her physical possession. A person who exercises dominion or control over property not on his or her physical possession is said to have that property in his or her “constructive possession.” Constructive possession requires that one exercises a level of control over the area in which the property is found, or over the person from whom the property is seized, sufficient to give him or her the ability to use or dispose of the property.
Sale has a different definition in law than its common meaning. “Sell” means to sell, exchange, give or dispose of to another, or to offer or agree to do the same. Thus, a sale occurs under the penal law even when the “buyer” pays no money for the controlled substance.
Are There Any Laws Addressing Drug Paraphernalia In Your State?
New York has a crime called criminally using drug paraphernalia in the second degree. (Penal Law § 220.50). That crime outlaws the knowing possession or sale of diluents, dilutants or adulterants, including but not limited to, any of the following: quinine hydrochloride, mannitol, mannite, lactose or dextrose, adapted for the dilution of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purposes of unlawfully mixing, compounding, or otherwise preparing any narcotic drug or stimulant.
It further outlaws the knowing possession or sale of gelatine capsules, glassine envelopes, vials, capsules or any other material suitable for the packaging of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant.
It also outlaws the knowing possession or sale of scales and balances used or designed for the purpose of weighing or measuring controlled substances, under circumstances evincing an intent to use, or under circumstances evincing knowledge that some person intends to use, the same for purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant.
Criminally using drug paraphernalia in the second degree, but if one has already been convicted of the misdemeanor, a second conviction is the class D felony of criminally using drug paraphernalia in the first degree.
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