July 2022 - Law Office of Frank Ciardi

Levels of Criminal Drug Charges as Explained by a Rochester Criminal Lawyer

by The Law Office of Frank Ciardi | Jul 29, 2022 | Criminal Defense

Has the number of criminal charges increased over the past decade? Since 2012, the number of drug arrests in Monroe County has decreased by over 80 percent. ^[1] However, this decline represents more of a shift.

In the early 2010s, drug possession arrests, specifically marijuana possession arrests, made up almost all of the drug arrests in New York. These cases are still fairly common, though marijuana’s partial legalization in NYS has had a drastic effect. Today, law enforcement focuses more on trafficking and altering drugs.

Aggressive prosecution has contributed to this trend as well. When they review the evidence in a case, prosecutors keep a sharp eye out for additional seized evidence, like guns or cash, which could justify elevating simple possession charges to more serious trafficking charges.

A Rochester criminal lawyer normally doesn’t pay much attention to politics. Aggressive representation is different. As tenaciously as prosecutors try to obtain convictions, that’s how hard a Rochester criminal lawyer works to beat drug charges in court.

Possessing Criminal Drug Charges

In terms of marijuana, it’s usually legal to possess one or two joints or one or two plants. Anything greater is illegal, even if it’s for personal use. Other common charges include illegal possession of prescription drugs and possession of street drugs, like meth and crack. All drug possession cases require prosecutors to prove three elements beyond a reasonable doubt:

Proximity: Generally, if Max is in a room, any drugs in the room are close enough to satisfy this requirement. The same is true if Max is in a vehicle and drugs are anywhere in the cargo or passenger area.
Knowledge: The further away the drugs are from Max, the harder it is for the state to prove he knew they were there. That’s especially true if Max was a guest in the house or he didn’t know the other people in the car very well.
Control: This element is even more difficult to prove than knowledge, particularly if there was more than one person in the room or vehicle. If Max couldn’t access the drugs without asking someone to move, he didn’t control them.

Thanks to the changing legal environment, most prosecutors view drug possession as not a criminal issue but a health and safety issue. Therefore, in most cases, resolutions are available that keep the matter off the defendant’s permanent record.

Trafficking Criminal Drug Charges

This offense usually involves manufacturing, selling, and/or distributing illegal drugs. Giving away an illegal drug, like giving leftover pain pills to a co-worker, is drug distribution.

These matters often involve long investigations with lots of moving parts. Therefore, procedural defenses are common in such matters.

Search warrants based on the informer’s testimony are a good example. Prosecutors cannot work backward in these situations. They cannot argue that if the information was accurate, it must have been reliable. Accuracy and reliability are two different things.

Most people will say practically anything for love or money. Therefore, judges closely scrutinize informer information in search warrants. If the informer doesn’t have an established track record or there’s no corroborating evidence, a judge may throw the warrant out of court. If that happens, the seized drugs are inadmissible.

Procedural and other possible defenses are critical in drug trafficking cases. These offenses are more serious than possession. Therefore, prosecutors don’t hand out favorable plea bargains like candy on Halloween. Plea negotiations are a little like poker. If a Rochester criminal lawyer holds a good hand, the prosecutor is more likely to fold.

Altering Drugs

Technically, these offenses don’t involve illegal drugs. Instead, these cases usually involve altering a medicine label or, less commonly, faking a prescription. Almost anyone with a laser printer and some patience can create a fake medicine label. Simple safeguards, like calling the doctor to confirm the prescription, have all but eliminated prescription fraud, at least with regard to opioids.

Prosecutors are particularly aggressive in these cases, and not just to protect public safety. Essentially, there’s a presumption that people who alter labels have drug problems. Nevertheless, favorable plea bargains are still available in these cases, especially if a drug evaluation reveals the defendant isn’t an addict.

These cases sometimes have proof problems. For example, in New York, possessing a fraudulent label is only “presumptive evidence of such person’s intent to use same for the purpose of illegally obtaining a controlled substance.” ^[2] This presumption alone usually isn’t enough to prove altering beyond any reasonable doubt.

Facing Criminal Drug Charges? Get Help Today

There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester criminal attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.

Sources:

[1] https://www.criminaljustice.ny.gov/crimnet/ojsa/arrests/Monroe.xls

[2] https://ypdcrime.com/penal.law/article178.php

Do I Still Need a Rochester Criminal Defense Lawyer in the ‘Soft on Crime’ Era?

by The Law Office of Frank Ciardi | Jul 15, 2022 | Criminal Defense

Less than a year after New York Governor Kathy Hochul signed a series of soft-on-crime reform bills which radically changed the criminal justice system, she began rolling back these reforms.^[1] With things constantly changing, you may wonder if you still need a Rochester criminal defense lawyer. We’ll weigh in.

“We’re not here to undo the progress that was made in the past,” Hochul said from the Capitol. “But I also said we have to realize there are areas where improvements can and need to be made,” so “We are moving forward with a thoughtful approach,” she added.

Some reforms on the chopping block include changes to the juvenile justice system, such as closing a controversial loophole in the so-called Raise the Age law. Governor Hochul said the reforms would also keep potentially violent offenders behind bars longer and ease discovery deadlines for prosecutors.

The proposed rollback is “too little, too late,” remarked former NYPD detective and current professor at John Jay College of Criminal Justice Joseph Giacalone. “The damage is done. There are too many politicians in New York that have gaslighted us for so long about the surge in violence.”

Juvenile Cases

Well before the latest round of criminal justice reforms, the number of juvenile arrests in New York started plummeting. Now, when kids run afoul of the law, they rarely end up with police records.^[2] Criminal convictions are even rarer.

As a result, some people believe a juvenile arrest in New York is not a big deal. That’s simply not true. Although the law makes some accommodations, for the most part, the same criminal code that applies to adults also applies to juveniles.

As mentioned, most juvenile cases have a happy ending or at least a reasonably happy ending. However, these resolutions usually aren’t available for the asking. A Rochester criminal defense lawyer must stand up for juvenile rights.

On a related note, many people believe that juvenile criminal records are automatically sealed when the child turns 18. That’s true in a few cases. If the case is dismissed or otherwise ends favorably for the defendant, all law enforcement and judicial records are immediately sealed.

If a court places a juvenile defendant on probation or takes other adverse action, the defendant, or rather the defendant’s Rochester criminal defense lawyer, must petition the court for sealing. This relief is available if the defendant is at least 16 at the time of the petition.

Post-conviction seals only apply to judicial records. Any law enforcement records usually remain. Fortunately, most people, such as future employers, know there’s a big difference between a criminal charge and a criminal conviction.

Pretrial Release

Many were upset with New York’s radical bail reform, which ended pretrial detention for nonviolent offenders. Some offenses, like stalking and weapons possession, are technically nonviolent. Obviously, though, these situations could escalate and end very badly. So, the rules are changing, but the structure is basically the same.

Pretrial release is usually available for first-time, nonviolent offenders. The sheriff releases these individuals if they pay a small fee and promise to appear in court and comply with other bail conditions, such as reporting to a supervision officer. Attorneys advocate for prisoners in borderline situations, like semi-violent crimes or situations involving remote (older than ten years) criminal convictions.

Attorney advocacy is available in other areas as well. If the sheriff doesn’t set bail or the amount is too expensive, a Rochester criminal defense lawyer can appear for the defendant at a bail reduction hearing. At these hearings, judges consider a wide range of factors, not just the offense’s severity.

Very few things jumpstart a successful criminal defense better than prompt pretrial release. Especially in the coronavirus era, incarcerated defendants usually have limited contact with their lawyers. Additionally, when the cell doors open, the pressure is off defendants to accept unfavorable plea bargains just to get it over with.

Criminal Evidence

The fact that prosecutors quit because they must follow the rules doesn’t bring us to tears. However, they have a point. Discovery in criminal cases should be fair to both sides. Since discovery is limited in criminal cases, defense attorneys must usually work harder and be creative.

In a personal injury case, evidence is usually easy to obtain. But in a criminal case, attorneys often partner with private investigators to find video surveillance evidence, additional witness testimony, and other potentially game-changing bits of evidence.

Additionally, many criminal cases include some non-criminal ancillary proceedings. DWIs are a good example. During an Administrative License Revocation hearing, the state must show its hand in front of a judge. If a lawyer represents the defendant at this hearing, the attorney knows exactly what’s coming at trial.

Get Help from a Dedicated Rochester Criminal Defense Lawyer

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal defense attorney. We routinely handle matters in Monroe County and nearby jurisdictions.