In this drug crime case, defendant was convicted after a jury trial of criminal possession of a controlled substance in the third degree and unlawful possession of marijuana. A New York Criminal Lawyer said on this appeal, defendant contends that his conviction for criminal possession of a controlled substance in the third degree should be reversed because the People failed to present legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.
A New York DWI Lawyer said that, viewed in the light most favorable to the prosecution, the evidence presented at trial established that at approximately 1:00 A.M. on July 21, 2007 the clerk at the store located on Main Street in the Village of Hudson Falls, Washington County called the police to report that someone was outside the store selling drugs. She placed that call after two separate patrons of the store so informed her. One of those patrons displayed to her what appeared to be a bag of marihuana.
The Patrolman responded to the call. On several occasions earlier that night between 11:00 P.M. and 1:00 A.M. the Patrolman had observed defendant, with whom he was already familiar, standing outside the store. the patrolman said when he arrived at the store in response to the clerk’s call, the Patrolman observed defendant coming out of the store with a six-pack of beer. The Patrolman approached defendant and accused him of selling drugs. At Patrolman’s urging, defendant produced a sock containing seven small bags of marihuana. The Patrolman then searched defendant, discovering four individual packets of heroin in his pocket.
The defendant appealed from a judgment of the County Court of Washington County, rendered February 22, 2008, upon his verdict convicting him of the crimes of criminal possession of a controlled substance in the third degree and unlawful possession of marihuana.
The issue in this case is whether defendant’s conviction should be reversed on the ground that the People failed to produce legally sufficient evidence showing his intent to sell four small packets of heroin found in his pocket.
The Court said that, as charged here, the crime of criminal possession of a controlled substance in the third degree requires proof that defendant possessed the heroin with the intent to sell it. In that regard, the People presented no direct proof that defendant sold or attempted to sell heroin to any individual. The said the Patrolman did not testify to observing such a transaction, nor did the clerk. And, notably, although the clerk testified that she had observed a male standing outside the door for about half an hour and that she saw him speak to several people whom she described as behaving nervously, she was not able to describe the man at trial not even his race and she was unable to identify defendant as the man in question.
Nor is there legally sufficient evidence from which to infer defendant’s intent to sell heroin. A Nassau County DWI Lawyer said at the time of his arrest, defendant was carrying no cash beyond a few coins. o evidence was presented that he possessed a weapon or any paraphernalia commonly associated with the sale of drugs. And, significantly, no testimony established that the small quantity of heroin found in his possession was inconsistent with personal use.
Although the absence of proof of defendant’s intent to sell the heroin compels us to conclude that the evidence was not legally sufficient to support a conviction for criminal possession of a controlled substance in the third degree, the Court finds that the People did present legally sufficient proof of defendant’s knowing and unlawful possession of heroin to support a conviction for the lesser included offense of criminal possession of a controlled substance in the seventh degree. Accordingly, the Court modifies the judgment of conviction by reducing defendant’s conviction for criminal possession of a controlled substance in the third degree to a conviction for criminal possession of a controlled substance in the seventh degree.
If you are involved in a drug crime involving heroin possession, and the evidence against you is insufficient to support your conviction, you need the help of a New York Drug Crime Attorney and New York Heroin Possession Attorney in order to defend your case properly. Washington Criminal Attorney at Stephen Bilkis and Associates can assist you. Call us for free legal advice.