New York Criminal Lawyer Blog

This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered June 6, 1992, convicting him of criminal sale of a controlled substance in the third degree (four counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of his omnibus motion which were to suppress physical evidence and statements made by him to the police.

A Kings Drug Possession Lawyer said that, the defendant’s conviction results from his sales of vials of crack-cocaine to several individuals during approximately a one-hour period, as well as the recovery from him of eight vials of crack-cocaine possession at the time of his arrest. The defendant’s actions were observed by an experienced narcotics police officer, using binoculars, who was stationed on the roof of a seven-story building approximately one block away. The defendant’s conviction for criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree arose out of an undercover narcotics operation conducted by the police on November 19, 1985. An undercover officer purchased a tinfoil packet of cocaine through a slot in a steel door located on the third floor of a semi-abandoned apartment building in Brooklyn. A few minutes later a backup team arrived and battered down the door. Upon entering the apartment, the police found the defendant standing between the kitchen and living room within two feet of a rifle and weapon which were lying on the floor. The police also found several tinfoil packets containing cocaine, paraphernalia relating to drug selling, and a pile of loose cocaine, all of which were in plain view.

A Lawyer said that, the back-up team arrested the defendant, as well as four of the five individuals who had been observed buying drugs from him. While processing the arrest paperwork at the police precinct, the officers discussed the order in which the buyers had approached the defendant. The defendant, who was in a holding cell approximately three feet away with the four buyers who had been apprehended, interjected: “I did not sell to those, those guys. I sold to him and him”, indicates two of the four individuals who had been arrested with arraignment coming.

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A Drug Possession Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered December 15, 1988, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress certain physical evidence and statements made by him to the police.

The issue in this case is whether the court erred in refusing to suppress the physical evidence seized by the police in this drug possession case. Neither arson or another crime was charged.

The court held that, contrary to the defendant’s contention, the hearing court did not err by refusing to suppress physical evidence seized by the police. The arresting officer testified at the suppression hearing that while on patrol with his partner he observed a car which was poised to make a right-hand turn suddenly back down the one-way street from whence it had come and stop in a double-parked position. The officer followed the car by driving the wrong way down the one-way street and stopped the police car in a head-on position to the other car. As the officer exited his vehicle he observed the defendant, who had been a passenger in the backseat of the other vehicle, open the back door and step out of the vehicle. As the defendant did so, a brown bag dropped to the ground at his feet and he began to quickly walk away. The officer picked up the brown bag and looked inside. Upon seeing two clear plastic bags containing a white powdery substance found to be cocaine, the officer pursued the defendant and placed him under arrest.

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Defendant was charged and convicted of criminal possession with intent to distribute 6¼ grams of heroin, in violation of 21 U.S.C. § 841(a), a drug crime. The defendant appealed. On appeal, defendant attacked the sufficiency of the evidence; the admission of certain testimony concerning drugs possession other than those he was charged with possessing in the indictment; and the trial judge’s charge to the jury.

The appellate court affirmed the conviction.

First, the standard utilized by the Court is not whether in its opinion the evidence and all reasonable inferences therefrom failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. The defendant’s argument here that he intended to use the heroin solely for himself is but one hypothesis of innocence, which the defendant suggested might satisfy the Court’s sense of reasonableness. The court has often held that this is not enough to permit a reversal of the verdict. As a rule, the court must uphold a guilty verdict if there is any theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt. This standard was met in this case.

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A post-conviction hearing was held pursuant to section 208 of the Mental Hygiene Law on defendant’s denial of addiction to a narcotic drug.

On 16 January 1969, defendant was examined by the jail physician. The physician executed a certificate on the regular form provided by the Narcotic Control Commission, which indicated that, pursuant to the order to perform a medical examination to determine addiction, he has personally observed and examined the defendant or the alleged criminal narcotic addict, examined the report of the interviewer, the Petition or the Officer’s report, and/or appended papers, and as a result, found insufficient evidence upon which to certify that the said defendant is a narcotic addict, within the meaning of such term, as defined by 201 of the Mental Hygiene Law. Annexed to the certificate was a form setting forth the following facts: defendant used the drug heroin by vein three times daily for five years; defendant’s last fix of heroin was April 1968; and defendant had pigmented scarred tracks both arms.

At the hearing, the jail physician stated his opinion that defendant was not addicted at the time of his examination as the term addiction is defined in section 201 of the Mental Hygiene Law. Moreover, a record from a certain State Hospital was received in evidence. This record set forth the following pertinent facts: defendant was admitted to the hospital on 8 March 1966; his diagnosis was: Drug Addiction—Heroin; he was arrested four times with three convictions including charges of petty larceny and possession of narcotics; he used heroin since 1957; on 7 June 1966, he was released on convalescent care; his subsequent police record showed a conviction for criminal possession of narcotics on 20 November 1967 based on an arrest on 9 August 1967 and a similar conviction on 27 November 1967 based on an arrest on 23 October 1967. No weapons were found.

At trial, the complainant presented evidence against a man, who was alleged member of a group who brought cocaine from San Francisco to New York. The man’s conviction was the result of a multistate investigation of a drug conspiracy involving parties in San Francisco, New York and Chicago. The drug enforcement task force began the investigation and the transportation coordinator for the drug network was known for an alias.

The possession counts against the criminal offender were for the cocaine possession on a white Mazda, cocaine possession on a blue Volvo and cocaine searched at a stash house.

Phone calls between the offender and other members of the conspiracy were frequent. The offender, from California, had most of his conversations about the status of the drugs and their shipment with leader of the drug enforcement task force. The leader, from New York, originated the majority of the phone calls between the two.

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A man was convicted after a jury trial of one count of criminal possession of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree and one count of criminally using drug paraphernalia in the second degree.

Prior to judgment, the complainant filed and served on the man two statements of predicate felony conviction. It alleges that the man was convicted of the offense of robbery with a dangerous weapon. It is also alleged that the ten years time period within which a predicate felony conviction must have occurred in order for the conviction to enhance the man’s sentence.

The second statement of predicate felony conviction alleges that the man was convicted on the same date in the same court of possession with Intent to sell and deliver a controlled substance. The statement also alleges that the ten years time period provided by the criminal law for predicate felony convictions is similarly extended by the same term of imprisonment.