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The Make-up of New York's A-I Drug Felonies

5/21/2013

The New York Penal Law[1] contains three categorizations of offenses: felonies, misdemeanors and violations. Felonies are the most serious and are subdivided into five classifications: A, B, C, D & E felonies. For the purposes of sentencing, A felonies are subdivided in to A-I and A-II felonies. A-I felonies are the most severe offenses, carrying a minimum term of imprisonment of 15 – 25 years and a maximum of a life sentence.[2]

Of the nearly thirty controlled substance offenses and drug crimes, only three are classified as A-I felonies: (a) NY PL § 220.21 – Criminal Possession of a Controlled Substance in the First Degree, (b) NY PL § 220.43 - Criminal Sale of a Controlled Substance in the First Degree, and (c) NY PL § 220.77 - Operating as a Major Trafficker. The New York Legislature has classified these three offenses amongst the most serious criminal offenses which can carry a sentence of up to life imprisonment. It is worthwhile to take a moment to understand the elements and components of these three most egregious drug crimes.

The first two A-I Drug Felonies are relatively straightforward, as they are the First Degree forms of Criminal Sale of a Controlled Substance and Criminal Sale of Controlled Substance. The interesting difference is that the minimum threshold weight of a Controlled substance for selling is only 2 ounces, which is a quarter of the 8 ounce minimum threshold weight needed for the A-I possession charge.

A person is guilty of NY PL § 220.21 - Criminal Possession of a Controlled Substance in the First Degree in either of two ways, by knowingly and unlawfully possessing either:

One or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of 8 ounces or more; or
Methadone that weighs five thousand seven hundred sixty milligrams or more.

A person is guilty of NY PL § 220.43 - Criminal Sale of a Controlled Substance in the First Degree when he knowingly and unlawfully sells either :

One or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of 2 ounces or more; or
Methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

The final A-I drug felony is NY PL § 220.77 - Operating as a Major Trafficker. This statute is aimed toward those offenders who are involved in drug trafficking rings and organized crime. A person is guilty of Operating as a Major Drug Trafficker when he falls into one of three descriptions:

Such person acts as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of $75,000 or more; or
As a profiteer, such person knowingly and unlawfully sells, on one or more occasions within six months or less, a narcotic drug, and the proceeds collected or due from such sale or sales have a total aggregate value of $75,000 or more; or
As a profiteer, such person knowingly and unlawfully possesses, on one or more occasions within six months or less, a narcotic drug with intent to sell the same, and such narcotic drugs have a total aggregate value of $75,000 or more.

If you or anyone you know has been arrested for an A-I Drug Felony, you should immediately contact a Criminal Defense Attorney to discuss the case. The repercussions of a conviction are serious and can include a sentence of life imprisonment. Call today for a free consultation with one of our criminal defense lawyers to learn how we can help.

[1] NY PL § 55.05
[2] NY PL §70.00

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No Breath Test, No Problem? Think Again - Observational DWI

12/26/2012

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During the holiday season, many police departments place special emphasis on DWI patrol and detection. The police know that during the month of December and through New Years day, many families and offices host holiday parties and serve alcohol to those in attendance. The police do not care about the parties themselves, but rather look out for all the guests who decide to drive home from a party after drinking.

Unfortunately, many drivers have the misconception that they are susceptible to DWI charges if they only had one or two drinks. This misconception is based on the notion that DWI charges depend solely on a breath test which determines a driver’s Blood Alcohol Content (BAC). However, both New Jersey and New York have TWO methods by which a court can find a driver guilty of DWI. The first method hinges on a breath test which determines a driver’s BAC. This is called Per Se DWI. If the test was properly administered and the machine, properly calibrated, produces a reading of 0.08% or above then the driver is facing a nearly certain Per Se DWI conviction.

The second type of DWI conviction is often referred to as Observational DWI and is based on factors independent of a driver’s BAC. Observational DWI, as its name suggests, can be founded on any observation of an officer or witness. These often include an odor of alcoholic beverages emanating from a driver’s breath or vehicle, slurred or nonsensical speech, bloodshot and/or watery eyes and anything else that one might see, hear or smell which leads to the conclusion that the driver was intoxicated. Additionally, officers can ask a driver to perform field sobriety tests which assess the driver’s balance and coordination. A poor performance on these tests will also support a finding of DWI. Finally, any statement made by the driver will be used against him should the statement indicate that the driver consumed alcohol before operating the motor vehicle. All of these factors can combine and support a court’s finding that a driver is guilty of DWI despite the absence of any breath test evidence.

It is important to understand that the law prohibits driving while intoxicated. While the most often discussed method of proving intoxication is the use of breath test machines, drivers can also be found guilty of DWI based solely on observational evidence. A driver who faces Per Se or Observational DWI charges should talk to a Traffic Court attorney as a thorough cross-examination of the arresting officer is crucial to the driver’s defense. If you have been charged with DWI, contact our office today to set up a free consultation.

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Understanding the Legal Definition of Criminal Possession

3/21/2012

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http://www.fuldlawoffices.com/new-york-criminal-defense-practice.htmlWhen a person has been charged with a crime involving the element of “criminal possession”, it is crucial to recognize that the legal definition of “possession” is much broader than the common definition. In both New York and New Jersey, “possession” extends to that which is found even beyond one’s person, bag or clothing. Understanding the legal definition can help a person distance themselves from situations that could result in criminal liability for possession.

The New York Legislature has outlined two scenarios whereby drugs can be found in an area and each person in that area can be charged with the crime of Criminal Possession of a Controlled Substance. New York Penal Law §220.25 provides, in part, that: (1) The presence of a controlled substance in an automobile is presumptive evidence of knowing possession by each and every person in the automobile; and (2) The presence of a substance in open view in a room, other than a public place, is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance. However, these presumptions are not usually applied if the substance is found on the person of one of the occupants.

In New Jersey, one can be charged for either actual or constructive possession of illegal drugs or weapons[i]. The New Jersey Supreme Court has defined these two types of possession as follows:

A person actually possesses an object when he has physical or manual control of it. A
person constructively possesses an object when, although he lacks "physical or manual
control," the circumstances permit a reasonable inference that he has knowledge of its
presence, and intends and has the capacity to exercise physical control or dominion over
it during a span of time[ii].

Accordingly, the fact that one did not physically or manually control an illegal drug or firearm is not enough to absolve a person of criminal liability. In New York, Criminal liability can be placed on any occupant of the room or automobile containing an illegal substance. In New Jersey, possession can be charged whenever it can reasonably be inferred that a person had both knowledge of the presence of an object and the intent to exercise control.

Criminal Possession statutes are very intricate despite the seemingly straightforward titles. If you have been charged with Criminal Possession of an illegal substance or firearm, it is important to consult with Criminal Defense Attorney to learn more about these charges.

[i] State v. Spivey, 179 N.J. 229, 236-237 (2004); State v. Reeds, 197 N.J. 280, 296 (2009).

[ii] Spivey, supra, at 236-237 (emphasis added).

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About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

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The Make-up of New York's A-I Drug Felonies

No Breath Test, No Problem? Think Again - Observational DWI

Understanding the Legal Definition of Criminal Possession

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The Make-up of New York's A-I Drug Felonies

No Breath Test, No Problem? Think Again - Observational DWI

Understanding the Legal Definition of Criminal Possession

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Fuld Disclosure
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