New York Criminal Lawyer Blog

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.

This case concerns fortunately rare and inexplicable police misconduct. The case involved is a reprehensible police action including violence and deception, culminating in the further deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine, for which he was convicted and sentenced to 15 years to life at Attica. At the time of trial, the defendant was in his mid-twenties and was a graduate student and teacher at Penn State University, on the brink of receiving his doctoral degree in plant physiology and biochemistry. He resided at State College, Pennsylvania. Although he admitted to having used three controlled substances on very few occasions, he had no prior criminal record for gun possession.

The events leading to the 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 heroin possession, 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 the crack possession 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.

The man, who at the 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 the questioning, an investigator of the New York State Police struck the man 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. The man 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 that he may as well forget about it. They swear that the man fell from the substation on the steps. this is similar to domestic violence.

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The defendant, a graduate student and teacher was convicted by the court without a jury. The conviction was of criminal sale of a controlled substance in the first degree, a class A felony and was sentenced to a minimum period of imprisonment of 15 years to life. It is not disputed that on January 4, 1975 the defendant, while under police surveillance, sold a substantial quantity of cocaine to a police informant.

The informant who made the purchase of a drug upon which the defendant’s conviction is based, testified that he had known the defendant for about two years before the transaction of January 4, 1975; that he had visited the defendant’s Pennsylvania apartment on several occasions; and that he had made prior drug purchases from the defendant. He also testified that on December 4, 1974, the day before he was arrested in Steuben County for crack possession, he purchased 1,000 pills which he believed to be amphetamines, a gram of cocaine and one or two grams of PCP from the defendant in Pennsylvania. While it later developed that these pills were not a controlled substance, he asserted that the defendant told him that they were black beauties and he paid the defendant between $220 and $240 for the pills.

The informant admitted that over a period of time he had used amphetamines, sedatives, hallucinogens, marijuana and heroin, and that he had sold drugs to others. He had a prior Chemung County conviction for marijuana possession which was pending on appeal. He was arrested for amphetamine possession and shortly thereafter he expressed a desire to work with the state police as an informant. He discussed with his attorney his possible informant’s role and its effect not only upon the charge with which he was then confronted but also upon the prior Chemung County conviction.

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The indictment charges against defendant with others with various degrees of possession of a dangerous drug are as follows:

Count 1: 1st degree–possession of 16 ounces and more of heroin;

Count 2: 4th degree–possession of a narcotic drug (heroin) with intent to sell; and