In New York, possession of certain controlled substances is illegal and could result in criminal charges. There are various degrees of penalties that may be imposed, depending on the type of substance possessed. If you are charged with possession of one of these substances, then you should seek out representation from an experienced criminal defense attorney.
What are the elements of the charge?
To be charged with criminal possession of a controlled substance in the fifth degree, the state must be able to prove:
1) Knowingly possess cocaine, cannabis, ketamine, phencyclidine, a preparation containing gamma hydroxybutyric acid ot a narcotic preparation; and
2) The amount possessed exceeds a certain weight level, which varies depending on the type of substance you possess.
Each of these must be proved beyond a reasonable doubt. If the prosecution cannot prove each element, then the case should be dismissed.
Penalties
A conviction under this code section is a felony and you face up to 2 1/2 years in prison. This would include a felony conviction on your record, which could result in revocation of certain civil rights.
You could also face significant financial penalties and be required to participate in treatment programs.
Are there any defenses?
There may be certain defenses available to challenge the state’s case. Whether a defense is available in your case depends upon the particular circumstances of your case and the procedures used by law enforcement.
Possession cases often involve issues related to constitutional rights. For example, the controlled substance cannot have been discovered as a result of an unreasonable search. If the police lacked a search warrant and cannot justify the retrieval of the controlled substance for some other legal reason, then that evidence should not be considered.
The state must also be able to prove that you actually possessed the substance. If they cannot show that you had knowledge of the substance or did not exercise any control over it, then you should not be convicted.
The state must also be able to show that the substance is what they claim it to be. This may require the state to present evidence from lab experts who conducted chemical testing. Sometimes this evidence is unavailable. If this evidence is available, then the state must show that the testing was conducted in compliance with certain procedures that are intended to ensure reliability of the test results.
To raise a defense, an attorney can file a motion to suppress evidence or otherwise exclude it from consideration. An attorney could also request dismissal of the case if certain rights were violated. If a case proceeds to trial, then an attorney can present evidence to support your defense.
What should you do if charged with possession?
If you are investigated or charged with possession, then you should contact a criminal defense attorney as soon as possible. An attorney will strive to protect your rights and pursue the best result possible under the circumstances. An attorney will help you understand the law and how it applies to your case.
An attorney can request the prosecution to provide all of the information it has about the case, including police reports, video recordings, lists of witnesses, lab results, and so on. After receiving this information, an attorney will help you understand the strengths and weaknesses of your case. This will help you make informed decisions about how to proceed and what strategy to pursue.
If your case goes to trial, then a criminal defense attorney will advocate on your behalf, question witnesses and present your defense. They will make sure you receive a fair trial that complies with the laws, rules and procedures.
