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Aside from Jail or prison, drug related convictions can have a stigmatizing effect on a person's professional, educational and immigration ambition's. But even when someone is caught red-handed either possessing or selling illegal drugs, there can be ways around a conviction even when there are no legal defenses.
If you are charged with just simple possession of a small amount of cocaine, heroin or some other illegal drug and its your first time, you may qualify for an Adjournment in Contemplation of Dismissal ("ACD"). An ACD does not require a guilty plea and allows for a drug charge to be dismissed and sealed in 6 months. In many cases an ACD is a great way to settle a drug charge in NYC courts.
Even If you are charged with a more serious felony cocaine or heroin possession-charge...for example if you are charged with possession with intent to sell or charged with selling the drugs--you may still be eligible for a program that will result in the dismissal of your charges even if you are not eligible for an ACD.
Talk to you lawyer about CPL 210.16
The Judicial Diversion Program (CPL Article 216) is available in the New York City Criminal and Supreme Criminal courts. Judicial Diversion is a program for felony offenders who face non-violent charges--usually property crimes or drug offenses, and who also abuse alcohol and/or drugs. Instead of jail or probation, Diversion provides in-patient and out-patient drug and/or alcohol treatment program followed by regular court appearances and supervision by a judge.
After arraignment--in many instances--an eligible defendant can choose to be evaluated for the Judicial Diversion Program as an alternative to the regular court process. Persons who abuse alcohol and/or drugs and are charged with a non-violent felony should tell their lawyer that they would like to be evaluated for the diversion program. Upon successful completion the charges are usually dismissed.
In New york, drug charges run along the spectrum of seriousness from a marijuana violation with a maximum of 15 days jail all the way to possession of more than 8 ounces of a heroin punishable by 8-20 years in prison
A common drug charge is possession of a controlled substance in the the 7th Degree under Penal Law 220.03 which is a misdemeanor punishable by up to a year in jail.
In NYC, possession of a controlled substance under Penal Law 220.03 results when the amount is small and for personal use. For cocaine, 220.03 is usually charged in NYC when the amount is under 500 milligrams and there is no indication that the person had an intent to sell it. Otherwise, possession of cocaine in NYC can be charged as a felony and usually as possession in the 5th degree (over 500 milligrams pure weight) or possession in the 3rd degree (either as "intent to sell", or over 1/8 an ounce aggregate weight).
In NYC Penal Law 220.03 is a charge often given to the purchaser when a purchase is observed by the NYPD. (an observation sale)
From an NYC Criminal Defense lawyer's point of view, a New York possession of a controlled substance charge whether it is cocaine, heroin or another controlled substance may be incorrectly charged in a number of ways. This can lead to a possible dismissal or at least a reduction to a lesser charge without having to go to trial. A knowledgeable NYC defense lawyer-- one who is familiar with the paperwork that must accompany a drug charge--should be consulted. The NYC attorney might be able to raise a successful challenge to the sufficiency of the complaint, particularly with regards to the 'possession' element. Sometimes there are problems with the lab results or the chain of custody of the controlled substance.
Another possible challenge that a lawyer can raise is the validity of the search which led to the arrest. But, realistically, suppression hearings are a last resort since they are notoriously difficult to win and in NYC Courts, the suppression hearing would usually occur after the case has been sent out to a trial part. It is better to get the case resolved before getting to this stage.
Experienced New York Defense Lawyers would likely agree that, a better plan, particularly when the client has a minimal prior record and the charge is a misdemeanor, is to attack the sufficiency of the charging documents, to move to dismiss the interests of justice, or to negotiate an ACD under New York CPL 170.55, if the client has a minimal prior record. If the prosecutor is not in agreement with those suggestions, a plea reduction to a disorderly conduct 240.20 might be a better option than going to trial or to a suppression hearing and risk having a criminal conviction. Of course, before one makes that determination one must make sure that they review and understand all of the facts. Call 212-786-2999 if you would like to discuss a controlled substance charge. (remember that drug diversion might be available if the charge is a felony)
In any event, all of the available options should be discussed and agreed upon between the lawyer and client as early in the case as possible. The key for the client is to make sure they have a lawyer that is experienced with a controlled substance charge in the New York City Criminal Courts.
On line of attack that a lawyer can use for a controlled substance case is on the sufficiency of the complaint.
Click here for a sample motion I recently did attacking a complaint charging possession of PCP
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