New York Criminal Lawyer Blog
A man was tried without a jury on the charge of criminally selling a dangerous drug in the third degree. But, he moved for a dismissal of the charge for failure of proof.
The man contends that the state was failed to call as a witness the police officer who was among those in the chain of possession and control of the alleged heroin.
At the trial, evidence was presented to show that another man bought from the man two packets of heroin. The other man enclosed the packets in a plastic box, scratched his initials on the box, and delivered the box to an investigator that the same day.
The investigator testified that he received the box, placed his initials on it and gave it for delivery to the state police laboratory.
The chemist from the state police laboratory testified that she received the box. She tested the contents of one of the packets, found it to be heroin, and then, after she putted her initials on the packet she placed it in a plastic bag, sealed the bag and returned the bag.
At that time the plastic bag and its contents were admitted in evidence. The district attorney argues that the man failed to enter a proper objection to admission of the state’s exhibit and the court has little difficulty with the argument.
The cases cited by the district attorney involved either no objection by the man’s counsel at all or an objection so general as to be worthless. Based on records, the same cannot be said of defense attorney’s objection. He was plainly objecting to the introduction of the state’s exhibit, which had been identified as heroin, as having been got from the man. The defense attorney clearly was not satisfied that the state had proved that the state’s exhibit did come from the man and his later argument and the motion to dismiss elaborated on the basis of his original reservation or objection and the court reserved decision.
In addition, an additional cause for reasonable doubt as to the integrity of the chain of possession and unchanged condition of the evidence is found also in inspector’s testimony. He was not asked, nor did he volunteer, what he did with the box and its contents when he got it from the other man and when he gave it to the same person. Again the court is thus left to speculate on whether the box was safely locked up or what other measures were taken to ensure that the alleged evidence was preserved intact. While the failure is not as serious as the failure to produce a necessary link in the chain of possession it does introduce a further element of uncertainty in the proof of the state’s case.
The defense counsel by letter, in addition to the memorandum filed, raises the further contention that in accordance with the criminal procedure law, the court must render a decision. The law provides for the order of trial in non-jury case states that when all the evidence is in the court, it must then consider the case and render a decision. Consequently, the law which mandates the decision at that stage of the non-jury trial is not applicable in the present case where the court has specifically reserved decision. It is particularly not applied in the case because the question reserved for decision by the court is a question regarding the evidence and whether it should be admitted or not. Until the question is answered there is no way of knowing whether all the evidence is in or not. Consequently, the court granted the motion to dismiss.
It is stressing for any parent to see their child behind bars, but it is more hurtful if the allegation is not true. If you are one of those parents, you can ask legal assistance from the New York City Drug Crime Lawyer or NY Criminal Attorneys, to prove your contentions in court. If you prefer the expertise of the NYC Heroin Attorney, simply call or drop at Stephen Bilkis and Associates’ office for your queries.