Law
New York State Drug Sentencing
This information is from the law office of Shalley & Murray, lawyers serving Queens, New York. If you are in the Queens area, and need a lawyer you can visit their website by clicking here.
Drug Sale (Trafficking)
The facts here are for New York State, but most other states have laws that are similar
Most people's image of the typical drug sale case is of the BMW driving, cell phone using, flashy drug dealer selling to school children. And perhaps that was the image in the minds of the State Legislators when they passed the drug laws now in effect.
The vast majority of drug cases involving the sale of drugs in Queens, however, are much less dramatic. Typically, a team of police officers enters into an area they believe to have a problem with drugs.
Two or more undercover officers will enter the area and one will attempt to buy maybe one or two vials of crack, bags of heroin, or whatever is out there.
Typically the transaction will involve a total sale of around $10 to $20. Often, the people will refuse to sell to an unknown person (like an undercover officer).
The usual solution to this problem is for the undercover to engage the services of some desperate drug addict hanging around the area to buy for him (or her). The desperate drug addict does this because he hopes to get some drugs as a reward.
Unfortunately for the desperate drug addict, his reward for buying for the undercover officer is to be arrested along with the actual seller and charged with the same sale.
The drug addict is charged with Acting in Concert to make the sale which means that (for sentencing purposes) he might as well have been the drug seller to begin with.
The police and prosecutors would defend this frequent problem by suggesting that the seller and the drug addict were in fact working together and that the drug addict is an employee of the seller whose job is to bring people to him. Perhaps in some or even many cases this is true.
Nevertheless, both addict and actual seller now face the same charge, usually Criminal Sale of a Controlled Substance in the Third Degree, a class B non-violent felony.
Assuming neither one has ANY criminal history, and assuming both are over 18 years old, both face a MANDATORY MINIMUM of 1-3 years in prison if convicted.
That means that if convicted, the judge could not give one day less than 1-3 years in prison, no matter what. No probation. No time served. No community service. No drug program. Just 1-3 years in jail.
Both face a potential maximum of 8 1/3 to 25 years in prison.
And if either one has a previous felony conviction within the last ten years, he faces a MANDATORY MINIMUM of 4 1/2 - 9 years in prison and a maximum of 12 1/2 to 25.
And remember, that in most cases we are talking about the sale of as little as ONE VIAL of crack cocaine. In one case Mr. Murray took to trial in Queens, his client faced 12 1/2 to 25 years for allegedly selling ONE-TEN-THOUSANDTHS OF AN OUNCE of heroin.
Many jurors sit on these drug sale cases totally unaware that in many cases the defendant is on trial for the better part of his life. Jurors are not supposed to consider the potential sentence, but common sense suggests that jurors form personal opinions about the seriousness of the case.
One local attorney recently overheard a Queens jury speaking together in the hallway after finding a person guilty in a drug sale trial. They all agreed that the defendant was probably just going to get probation.
Looking at the maximum sentences available, a person is better off in the criminal justice system in New York taking a bat and beating another person to a pulp, complete with broken bones, than selling one vial of crack for $10. On conviction, the judge could sentence the drug seller to more time.
Drug Possession
Drug possession cases depend for their seriousness on the amount of drugs involved and the intent of the person in possession.
If the police and prosecutors charge you with possession with intent to sell then assuming the weight is not too great, you would face the same B felony sentences as if you had actually sold it.
That means a mandatory minimum of 1-3 if you have no felony record and a mandatory minimum of 4 1/2 - 9 if you do. If the weight of the drugs involved is significant (like more than an ounce of cocaine), then you would face LIFE IN JAIL.
One of the most dramatic issues in felony drug possession cases arises when drugs are recovered from inside a car.
When drugs are recovered from inside a car, the police usually arrest every person inside the car and charge every person with the same possession.
The law permits all passengers to be charged with and convicted of possession of drugs found anywhere in a car.
In fact, if such a case were to go to trial, the judge would specifically instruct the jury that your presence in the car with the drugs (no matter where the drugs were recovered) is enough for them to find that you KNEW the drugs were there.
This would be true even if the drugs were found in a secret, locked container in the truck of the car, it wasn't your car, and you were not driving.
The jurors would not be REQUIRED to assume that you knew of the drugs, and you could ARGUE that you didn't know about the drugs.
But understand that if the jury did not believe your ARGUMENT that you didn't know, you might well go to jail FOR THE REST OF YOUR LIFE (depending on the weight of the drugs).
Books Sense and Nonsense About Crime and Drugs:
A Policy Guide
This book is intended as a supplemental text for a variety of courses in departments of criminal justice, sociology, and political science.
Beginning with a discussion of the administration of criminal justice in the United States, the book evaluates conservative and liberal crime control proposals, gun and crimes, drug policy, the war on drugs, and the legalization of drugs.
Sense and Nonsense About Crime and Drugs The American Disease:
Origins of Narcotic Control
A book more for the student, than the average reader. This is a classic study of the development of drug laws in the U.S.
David Musto examines the relations between public outcry and the creation of prohibitive drug laws from the end of the Civil War to the Reagan and Clinton administrations.
The American Disease Why Our Drug Laws Have Failed
and What We Can Do About It:
A Judicial Indictment of the War on Drugs
Written by a man who has worked as a federal prosecutor, a trial judge, and a California superior court justice. The author informs readers of the amount of money spent, the crime caused, and the lives ruined by the war on drugs.
Many people in government, legal, and other positions who are in favor of the war on drugs see it as an easy means of getting some of the billions of dollars wasted on it each year in the US.
Putting nonviolent offenders in prison and diverting law enforcement resources that could be used to serve and protect society as a whole might not be a very good decision.
Why Our Drug Laws Have Failed
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