New York Criminal Lawyer Blog
A New York Drug Possession Lawyer said that, the events leading to defendant’s conviction trace back to December 5, 1974 when a young man with an unsavory drug history, was arrested by the New York State Police in Steuben County for possession of a controlled substance in the second degree, a class A-2 felony punishable by a 15-year to life term. At the time of his apprehension, he was on bail pending an appeal from a 1973 conviction, based on a guilty plea for possession of a dangerous drug in the fourth degree, for which he had been sentenced to an indeterminate term of zero to three years at the New York Correctional Facility at Attica.
A New York Cocaine Possession Lawyer said that, the young man, who at defendant’s trial admitted to being an inveterate user of drugs, including amphetamines, sedatives, hallucinogens, marihuana and heroin, and a seller for profit to maintain his habit, was interviewed after his arrest on December 5, 1974 at the New York State Police substation at Painted Post. As found as a matter of fact by the trial court, during this questioning, an investigator of the New York State Police struck him with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. He testified that this abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said, “I may as well forget about it. They would swear that I fell coming in the substation on the steps.”
A New York Felony Lawyer said that, following his seizure on December 5, 1974, the young man was held without bail at the Steuben County Jail until December 24, when he was released. By December 23, one of the officers involved in his case had received a lab report showing that the capsules found on the young man, which were the basis for his class A-2 felony charge and which had been purchased from defendant, were not controlled substances at all. Rather than being amphetamines of a type referred to on the street as “Black Beauties”, they were in fact nothing more pernicious than caffeine. However, he was not told of this until sometime later, at the trial of this matter after he had been used by the police as an informant in this case. This is a criminal situation.
A New York Drug Possession Lawyer said that, he began his informant activities by telephoning various persons indiscriminately for the purpose of setting up drug sales in which the police would arrest the sellers. He made “collect” calls and one of the individuals contacted was defendant, whom he had known for two years through a mutual friend at State College. Defendant’s version of the conversations is that the young man cried and sobbed on the phone, relating that he was facing 15 years to life in Attica, that his parents had effectively cast him from the family home, that he was running out of friends, and that he was looking for ways to make money to hire a decent lawyer. The young man’s recollection was that he had not made the remarks in the manner described by defendant, but he otherwise corroborated defendant’s version. He admitted telling defendant that he was in trouble, that the police had beaten him, that he feared going to Attica, and that he needed a “score” or “deal” so that he could hire an attorney and “make” bail.
Between December 24, 1974 and January 4, 1975, the young man made seven phone calls to defendant before finally arranging a sale. Initially, he sought to buy heroin, but defendant flatly refused. As to cocaine, defendant tried to put him off by saying that there was nothing worthwhile, but the young man persisted in his efforts to get defendant to make a sale. At the time of the young man’s calls, defendant was living in an apartment in State College with a legal secretary, who admitted that she was a daily user of drugs including marijuana, cocaine, LSD, amphetamines and depressants. She testified that in October and November of 1974 defendant had sold one-gram quantities of cocaine which he kept at the apartment, and this was confirmed by the young man who alleged that he made two purchases of small amounts of cocaine from defendant during these months. Although the legal secretary had not herself spoken to him about a sale, defendant discussed with her at length his request.
Defendant’s studies and his teaching responsibilities required him to work 12 to 14 hours a day. He did not have access to someone who could supply him with the cocaine the two ounces worth $3,800 which the young man was seeking but the legal secretary did. The sale was scheduled for January 4, 1975. The State Police claimed no knowledge of the young man’s prior negotiations, but had spoken to him concerning the sale in general. The investigator, who had previously struck him, detailed the specifications to his victim-turned-informant. He said he might be able to get an ounce of cocaine, but the investigator told him to get two because it was his experience that one never gets exactly what is asked for and he wanted a sale of at least one ounce to obtain a conviction for a higher grade of crime. Defendant feared New York’s drug laws and did not want to enter the State, but the investigator instructed him that the transaction must take place in New York where he had authority to make an arrest.
A New York Criminal Lawyer said that, to cause defendant to sell drugs in this State, the young man cleverly kept changing the destination, progressively northward, culminating in an arrangement by which defendant would make a three- or four-hour trip to meet at a place near the Pennsylvania-New York border, at a spot where it would be difficult for defendant to ascertain his location. Initially, defendant agreed to meet in Williamsport, Pennsylvania, one and a half hours distant from State College. He then succeeded in inducing defendant to commit himself to journey to Mansfield, a point near Williamsport and also in the Quaker State. Finally, he acceded to drive another 15 miles north from Mansfield to Lawrenceville, Pennsylvania, which is just south of the State boundary. Defendant engaged in a rather elaborate method of delivering the cocaine, including an arrangement to have the legal secretary drive along in a separate vehicle conveying the contraband and the toting beneath his shirt of a plastic bag containing a nonnarcotic substance with a cocaine appearance to be turned over in the event of a “rip-off”. He testified these precautions were suggested by the supplier. The Appellate Division majority and trial court inferred that defendant’s use of these methods showed he was not unskilled but was knowledgeable and wary. This evaluation is belied by the ease with which he was enticed into New York. Domestic violence was not involved.
A New York Cocaine Possession Lawyer said that, following a trial, without a jury, at which defendant raised the defense of entrapment and urged that his due process rights were violated, the County Judge found him guilty of criminal sale of a controlled substance in the first degree in violation of section 220.43 of the Penal Law, and imposed sentence. The Appellate Division affirmed, but two Justices vigorously dissented.
In holding that this prosecution should be barred, we find it unnecessary to examine in detail the question of whether this defendant was predisposed to commit the crime. County Court found as a matter of law and fact that defendant did not prove by a preponderance of the evidence the defense of entrapment and the Appellate Division majority in turn held that the record amply supports the determination that defendant was predisposed to commit the offense for which he was charged. Even though defendant did not sustain his burden as to this affirmative defense, the police conduct, when tested by due process standards, was as egregious and deprivative as to impose upon us an obligation to dismiss.
Recent cases show greater recognition of due process as a check on police misconduct. In a later case, however, the meaning of Russell divided the majority of the court, which upheld a conviction where the government supplied contraband to a defendant later prosecuted for trafficking in the same. Referring to Russell, the plurality stated: “We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established”. Two Justices concurred, on the basis that they were “unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to criminal conviction in any case where the Government is able to prove predisposition”. Therefore, in light of the concurrence and the dissent of three Justices, a dismissal on due process grounds in the context of an insufficient entrapment defense has not been ruled out by the Supreme Court.
Of course, under our own State due process clause. However, the views expressed by some members of the Supreme Court, as well as those of other courts and respected commentators, illustrate and articulate the need for a due process analysis of the boundaries of permissible police conduct. We therefore decide this case under our own State Constitution. It has been said that “‘due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances”. It embraces fundamental rights and immutable principles of justice and use of the term is but another way of saying that every person’s right to life, liberty and property is to be accorded the shield of inherent and fundamental principles of justice. Due process of law guarantees respect for personal immunities “so rooted in the traditions and conscience of our people as to be ranked as fundamental”. It imposes upon courts the duty to foster “‘that fundamental fairness essential to the very concept of justice.’ “
While due process is a flexible doctrine, certain types of police action manifest a disregard for cherished principles of law and order. Upon an inquiry to determine whether due process principles have been transgressed in a particular factual frame there is no precise line of demarcation or calibrated measuring rod with a mathematical solution. Each instance in which a deprivation is asserted requires its own testing in the light of fundamental and necessarily general but pliant postulates. All components of the complained of conduct must be scrutinized but certain aspects of the action are likely to be indicative. Murder was not involved.
In sum, this case exposes the ugliness of police brutality, upon which was imposed a cunning subterfuge employed to enlist the services of an informant who, deceived into thinking he was facing a stiff prison sentence, desperately sought out any individual he could to satisfy the police thirst for a conviction, even of a resident of another State possessed of no intention to enter our confines. Separately considered, the items of conduct may not rise to a level justifying dismissal but viewed in totality they reveal a brazen and continuing pattern in disregard of fundamental rights.
Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed.
If you have been denied of due process in a drug possession case, seek the assistance of a New York Drug Possession Attorney and New York Criminal Attorney at Stephen Bilkis and Associates.