drug charges

How Do The Courts Prove Drug Possession?

When someone is charged with the illegal possession of drugs in the state of New York, how does a prosecutor prove that the person is guilty as charged? Could someone who is falsely accused of drug possession be convicted anyway? What are your rights and options if you are accused of illegally possessing drugs in New York? Here’s what you need to know about drug possession and the law in our state.

While having a small amount of an illegal drug for your own personal use may not be considered the most egregious crime committed in New York, a drug possession conviction can still land a defendant behind bars in this state. Scores of New York statutes cover the sale, cultivation, manufacture, distribution, and trafficking of illegal drugs.

The criminal penalties for those who are convicted of the illegal possession of drugs will hinge to a large extent on the amount of drugs or money involved, the type of drugs, whether weapons or minors were involved, and a defendant’s criminal history. But precisely what does the state have to prove to convict someone of illegal drug possession?


The answer is that the prosecutor must prove beyond a reasonable doubt that the defendant had possession – “actual” possession, “constructive” possession, or “joint” possession – of illegal drugs. In many drug cases, these legal concepts of actual possession and constructive possession will come into play. What’s called actual possession is usually simple to prove, while the constructive or joint possession of drugs may be more difficult for a prosecutor to demonstrate.

How are these terms defined? “Actual” possession usually means that the police discovered drugs on a defendant’s “person” – that is, in a purse, pocket, backpack, stashed in someone’s socks or shoes, or sometimes even swallowed. If the search of the defendant’s person was conducted legally, the testimony of the officer who discovered the drugs is usually sufficient to convict the defendant.


A defendant’s “constructive” possession of illegal drugs is presumed when the drug is found in a location where the defendant had “dominion and control” over the area. Legally speaking, a conviction based on constructive possession means that a defendant had could and/or intended to possess and control the illegal drugs.

Constructive possession does not have to be proven by a prosecutor – it can simply be inferred. For example, if illegal drugs are discovered in a defendant’s desk or refrigerator, it can be “inferred” that the defendant had dominion and control over the desk or refrigerator, and thus over the drugs.


“Joint possession” of illegal drugs means that more than one individual had constructive or actual possession of the drugs. For example, if illegal drugs are discovered in a married couple’s kitchen or bedroom, the law in New York presumes that both spouses were in constructive possession.

Another example: When police officers stop a moving vehicle in traffic in New York and find illegal drugs in the console between the driver’s seat and the front passenger’s seat, the driver along with any passengers may all be presumed to have joint and constructive possession of the illegal drugs.

Clearly, proving actual possession is easier for the state than proving constructive or joint possession. Constructive possession is tougher to prove because the state must show that a defendant had dominion or control over the area where the drugs were found and that the defendant knew or “should have known” that the drugs were illegal. Simply being in the vicinity of illegal drugs is not sufficient to prove constructive possession. There must be something more.


When a defendant lives alone or is the only occupant of a vehicle where illegal drugs are found, that usually establishes constructive – if not actual – possession. But when a defendant is not the only resident in a home or the only occupant in vehicle, the state must provide something more to prove constructive possession.

That “something more” could be that the illegal drugs were found in the defendant’s bedroom or other personal effects, that the illegal drugs were located in plain sight, or in the case of a vehicle, that the illegal drugs were found under the defendant’s seat. Strict rules govern vehicle searches.

For instance, if a police officer stops you in traffic and believes that you are armed, you can be asked to step from the vehicle, and you can be searched. If illegal drugs are found during a “pat-down” search conducted in these circumstances, the drugs can be seized, you can be charged with possession of illegal drugs, and your rights have not been violated.


New York drug laws are designed to produce convictions. To be convicted of illegal drug possession, the drugs do not even have to be in your personal physical possession. Anyone on Long Island or in New York City who is charged with possession – constructive or actual – of illegal drugs will need the help of an experienced Long Island criminal defense lawyer who can explain how the concept of constructive possession may apply in your own drug possession case.

When someone is allegedly found possessing a large amount of illegal drugs, a simple possession charge can become the more serious charge “possession with intent to distribute.” When the drug is particularly dangerous – such as methamphetamine, heroin, or cocaine – a charge of possession with intent to distribute can mean a severe mandatory minimum penalty.

However, unless a defendant confesses or is caught in the act, possession with intent to distribute must be inferred from circumstantial evidence like the way the drug was packaged or the discovery of the paraphernalia and equipment – such as scales and plastic bags – used to sell drugs illegally.

If you have been charged with the possession of illegal drugs – or with any drug crime – on Long Island or in New York City, you should contact an experienced Long Island criminal defense lawyer immediately. A drug conviction can negatively impact your life and even land you in jail or prison. Being advised and represented by a skilled defense attorney is imperative – and it’s your right – if you are charged with any drug crime in the state of New York.

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Long Island Police Battle Heroin And Methamphetamine Crimes

Atlantic City police reported six deadly heroin overdoses in the last week of January, and police in Nassau County have now warned Long Island residents about “bad” heroin that may have found its way from Atlantic City to Long Island. Small bags of heroin made from folded wax paper and stamped with the words “King of Death” were found at the scene of two of the Atlantic City overdose fatalities. Police in Nassau County also announced that law enforcement officers are keeping tabs on what they are calling a “drug outbreak” in Atlantic City, and they are asking residents to call 911 if they have useful information about heroin use or distribution.

Also, in what authorities have called a real-life version of the television show Breaking Bad, a lawyer who works for the Internal Revenue Service was arrested on February 1st in Washington, D.C., and accused by federal prosecutors of conspiracy to sell methamphetamine on Long Island. Attorney Jack Vitayanon, 41, is also an adjunct professor of tax law at Georgetown University Law School and is a former law clerk for a Florida federal judge.

Vitayanon allegedly “supplemented his income by selling distribution quantities of methamphetamine,” according to Robert Capers, the U.S. Attorney for the Eastern District of New York. In response to the arrest of Vitayanon, the Internal Revenue Service issued a statement that said in part: “We cannot comment on specific personnel matters…. The IRS strongly emphasizes that it will take any and all actions against inappropriate employee conduct, up to and‎ including dismissal.”

Federal prosecutors are alleging that Vitayanon conspired to distribute 500 grams of methamphetamine on Long Island. According to court records, federal agents have discovered video of Vitayanon “smoking what appeared to be methamphetamine from a glass pipe.” Vitayanon’s alleged methamphetamine dealing came to the attention of authorities in December when law enforcement officers on Long Island seized a Federal Express delivery with 460 grams of the drug as it was delivered to a home in Oceanside.


Whether or not Vitayanon is eventually convicted of conspiracy to distribute methamphetamine, it is important to know that incarceration is a likely penalty for anyone who is convicted of manufacturing, distributing, selling, or possessing either heroin or methamphetamine in the state of New York. It’s imperative for anyone who is charged with a drug crime in New York City or on Long Island to be represented by an experienced Long Island criminal defense lawyer. Since the days when Nelson Rockefeller was the governor of this state, New York has been famous – some would say infamous – for being tough on illegal drugs and drug dealers.

For example, back in 2007, the New York State Legislature outlawed the operation of facilities used to manufacture drugs like methamphetamine. Anyone who possesses or supplies drug ingredients or cooperates with an illegal drug lab can be charged with Unlawful Clandestine Drug Operation in the Second Degree, a Class C felony. The first-degree charge, a Class B felony, is filed if a suspect has previous criminal convictions, if juveniles are involved in the operation, if the lab is near a school, or if “booby-traps” have been set to surround the lab.

Heroin use has now reached its highest level in twenty years in the United States, according to a 2016 report published by the United Nations Office on Drugs and Crime. The report states that there were about a million heroin users in the United States in 2014, almost three times as many users as in 2003. Heroin-related fatalities across the nation increased five-fold from the year 2000 through 2014. In 2016, President Obama responded by asking Congress to approve an additional $1.1 billion to address the epidemic of opioid and heroin abuse.


“There have been a lot of theories about why heroin use is going up,” according to Scott Krakower, an assistant unit chief of psychiatry at Zucker Hillside Hospital in Queens. Krakower explained to CBS News, “The biggest theory is that the crackdown on prescription drugs, like Vicodin and OxyContin, were being overprescribed and as prescribers slowed down the prescriptions of these drugs, heroin use went up.” In his work, Krakower sees the effects of heroin abuse. “Heroin is a dangerous, powerful opioid. It leads to pretty quick highs. It can easily suppress breathing. Eventually you can die from it.”

In 2015, Nassau County District Attorney Madeline Singas responded to the rising heroin epidemic by recommending legislation that would allow New York prosecutors to charge a heroin dealer with a homicide if one of that dealer’s customers dies from a fatal overdose. New York is tough on drug crimes, but in most cases, drug dealers in New York still cannot be prosecuted for a customer’s death.

A lengthy prison term, however, is very often the penalty for a felony drug conviction in New York, so anyone who is charged with a drug crime should be defended by an experienced Long Island criminal defense lawyer. Drug charges frequently follow lengthy criminal investigations that can involve the use of wiretaps and/or search warrants, so challenging the legality and constitutionality of the investigation and the arrest will often be a defense attorney’s first move on a defendant’s behalf.


Operating a drug laboratory that produces a substance like methamphetamine inevitably requires the work of more than one person. Unsurprisingly, criminal investigations of drug lab operations usually result in a number of arrests and multiple criminal charges that include conspiracy charges. Anyone who is involved with or even acquainted with those who operate a drug laboratory could be mistakenly arrested and charged when the police move in on the lab.

New York is not the only location where heroin is re-emerging as a serious crime and a public health concern. The United Nations Office on Drugs and Crime reports that internationally, 17.4 million people used heroin, opium, or morphine in 2014. Around the world as well as in New York, lawmakers and policy-makers are continuing to seek innovative and effective ways to protect the public and deal with the problem of narcotics and other dangerous drugs. Defense attorneys in New York remain dedicated to protecting the rights of suspects and achieving the best possible results for clients who face drug charges.

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Prescription Drug Crimes

When people think of drug crimes, they tend to think of marijuana, cocaine, heroin and other drugs, but the truth is, prescription drug charges are just as common. Although recipe drugs such as Vicodin, Xanax, Adderall, OxyContin and Valium are perfectly legal when they are prescribed by a doctor, possession of these drugs can be illegal if the prescription was not issued by a doctor.

What Does the Law Say?

According to New York law, “A person is guilty of criminal diversion of recipe medications and prescriptions… when he or she commits a criminal diversion act.” A “criminal diversion act” is when an individual:

  • transfers or delivers either a plain prescription or the actual recipe medication for payment, while knowing the recipient does not need the medication or recipe for medical purposes
  • receives a plain prescription or the actual recipe medication, while knowing that the seller has no legal authority to sell the medication or recipe

If you are charged with possession of prescription drugs, you could face serious charges that will affect you for the rest of your life. The consequences range in harshness depending on the degree of the crime you are charged with. Prescription drug crimes can range from first degree (the most serious of charges) to fourth degree (the least serious of the charges).

You may be charged with criminal diversion of recipe medications and prescriptions in the fourth degree if you commit anything considered to be a criminal diversion act. This charge is a misdemeanor punishable by up to one year in prison and a fine of up to $1,000.

To be charged with a third degree crime, the value of the drugs in possession must exceed $1,000 or the individual must be a repeat offender. This crime is a class E felony and is punishable by up to four years in prison.

To be charged with a second degree recipe drug possession crime, the value of the drugs in possession must exceed $3,000. This crime is a class D felony and is punishable by up to seven years in prison.

To be charged with a first degree recipe drug possession crime, the value of the drugs must exceed $50,000. This crime is a class C felony and is punishable by up to fifteen years in prison.

Even the least severe of these charges may lead to jail time, so being charged with possession of recipe drugs is no laughing matter. Always consult with a Long Island drug crimes lawyer if you are being investigated or charged with this crime. Our team of attorneys will begin working on your case immediately to defend your rights and achieve the best possible outcome.

Prescription Forgeries

If you illegally possess these drugs, you could face serious criminal charges. But, even if you just possess a fraudulent recipe for these drugs, you will face charges. In fact, recipe forgery is on the rise in New York. With the abuse of pharmaceutical prescription drug still on the rise, more criminal profits are made every year through the forgery of narcotics prescriptions, a crime that’s also statistically on the rise. Local law enforcement agencies in New York have cracked down on the illegal purchase and sale of prescription narcotics. A defendant in New York who allegedly has forged prescriptions may face several serious criminal charges.

One reason forged prescriptions succeed: they use genuine recipe paper obtained by theft or bribery from legal healthcare operations. When law enforcement officers discover a large quantity of prescription paper (or the tools for processing thermal prescription paper), it’s deemed as possible evidence of a suspect obtaining and distributing prescription narcotics. Some defendants are also accused of creating prescriptions in the names of actual Medicaid recipients. When these allegations can be demonstrated, defendants already charged with prescription forgery can be additionally charged with Medicaid fraud.

Instead of using genuine recipe paper illegally obtained from a doctor, some individuals just alter an existing recipe that they have legally received from a medical professional. For example, if someone is legally prescribed Xanax, but at a low dose, they could alter the dosage or number of pills that they receive so that they are given more than the doctor intended them to receive. Even though the initial prescription was legal, it is still illegal to tamper with a prescription, and this is considered a forgery.

If you use a forged recipe to obtain medication and are no longer in possession of the forged prescription, you are not safe from prosecution. If it can be proven that you used a fraudulent prescription to obtain the recipe medication, you may still be charged with this crime–even if the actual piece of paper is not in your possession at the time of arrest.

Convictions for recipe forgery can result immediately in fines, prison terms, and restitution payments. Prescription forgery convictions also have long-term consequences that will affect a defendant’s finances and employment for many years. Many employers will be hesitant to hire someone who has been charged with a forged prescription or prescription drug possession, so it may be difficult for you to find a job. But, this is not the only long-term consequence of this crime. If you are not a citizen of the United States, a conviction for prescription forgery may lead to deportation.


If you are being investigated or accused of forging prescriptions, or if you’ve been formally charged, speak immediately to an experienced Long Island criminal defense attorney. A good criminal defense lawyer will advise you regarding your legal options, help you obtain evidence and witnesses, and work to have your recipe forgery charge or possession of recipe drugs charge reduced or dismissed. In some cases the court may offer alternative sentences that may include rehabilitation programs, classes, or community service. Speak to a lawyer about whether these options may be available in your case. Don’t let a prescription forgery charge threaten your future or your freedom; if you’re facing the charge, get the help of an experienced criminal defense attorney as quickly as possible.

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When Cops Smell Drugs

Drug possession and drug trafficking are two very serious offenses in New York. When it comes to narcotics, New York has historically been one of the more strict enforcers of drug laws. However, it is not a crime when cops simply smell drugs.

Contact with Police

A large majority of drug possession and drug trafficking cases in New York are based on the police finding evidence of a potential legal violation before corroborating their suspicions with statements made by suspects and witnesses.

What most people don’t realize is that they are under no obligation to speak to police, no matter the type of crime is being investigated.

Our legal system is not just a black and white set of laws – it is a web of rules, requirements, exceptions and elements that must all be applied based on the specific facts of the case at hand. It is an environment where saying the wrong thing, even in the wrong tone of voice, could lead to significantly harsher sentences than may actually be prudent or required under the circumstances.

Because they can have no way of knowing how their statements will be construed or interpreted by readers of the police report later, it is always better for suspects to refuse to respond to questions and to immediately request an attorney whenever contact with police is initiated.

I Smell Drugs

One tactic that police use in order to cause suspects to incriminate themselves (which suspects always have the right not to do), is to make statements and wait for a response. One such statement is I smell drugs. Believe it or not, but once most people hear this statement, they hear a question that they think has to be answered. Not only is this statement not even a question that could be answered, but the person to whom the statement is made is under no legal obligation to provide an answer, even if the statement had been made in the form of a question.

In fact, nowhere in New York law is the act of smelling like anything a crime. The odor of drugs may be probable cause for the police officer to detain a person, but it is not actually a crime that could even be ticketed. The way an odor leads to an arrest and conviction is, when upon hearing that police officers smell drugs, detained individuals start volunteering information in the hopes it will get them out of trouble. In most cases, efforts to get themselves out of trouble is actually what leads to suspects getting themselves into more trouble simply because police officers smell drugs on or near the suspect.

After Questions are Refused

When a person tells a police officer in the field that he or she is refusing to answer questions, they may be hit with other questions, like “Why?”

When this happens, suspects should tell police, again, as politely as possible, that they are not answering questions, and again request the presence of an attorney. This might create a visibly frustrated police officer, but suspects should not worry, for if a police officer actually has the right to make an arrest or conduct a search, the officer doesn’t need the permission of the suspect in order to do the officer’s job.

Make no mistake about it, everything a police officer says to a suspect in the field is tactically designed to get the suspect to incriminate him or herself. Keep this in mind and always refuse to answer questions regarding drug investigations until experienced legal counsel has been obtained.

What Happens When The Dog Accuses You?

First, imagine that you’ve been pulled over by the police even though you haven’t done anything wrong. Secondly, now imagine that the police officer who stopped you is accompanied by a drug-sniffing German Shepherd. Now, you don’t have to just worry about the police office claiming that he or she smells drugs, but also that the dog will react to something that he smells. Do you have the right to refuse a “dog-sniff” test? Yes you do, and in fact, it’s a bad idea to submit to a police dog-sniff test. If you’re charged with any crime in New York on the basis on evidence obtained through the use of a police dog, get legal help at once and contact an experienced Long Island criminal defense lawyer.

The behavior of drug-sniffing dogs is often used as probable cause to search a vehicle at a traffic stop, but research is proving that drug-sniffing dogs are unreliable. According to a study conducted by the Chicago Tribune in 2011, when a dog indicates that illegal drugs are in a vehicle, the dogs are right in only 44 percent of these incidents. The U.S. Supreme Court ruled in 2005 (in Illinois v. Caballes) that police do not need reasonable suspicion to employ drug-sniffing dogs during a legitimate traffic stop. However, if the police don’t have a dog with them at the time of the traffic stop, they need probable cause to detain you until a K-9 unit arrives. If an officer detains you in this situation, you have the right to refuse a search.

Your refusal may not stop the police from detaining you and using the K-9 anyway. If the police arrest you, a good defense attorney will make sure that your rights are protected. If the police did not have probable cause to detain you, your attorney will ask the court to throw out any evidence obtained through an illegal search. On Long Island and anywhere in New York City, if you’re charged with any crime because of evidence obtained by the use of a police dog, arrange to speak at once with an experienced Long Island criminal defense lawyer. Don’t trust your case with a public defender who may have never worked on this type of case before. There is too much at risk to put your future in the hands of a public defender. Instead, go to a trusted Long Island criminal defense attorney.

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