Now more than ever defendants need capable and experienced attorneys who can protect their constitutional rights when charged with drug related offenses. Therefore, it's important that persons charged with drug crimes should find a capable criminal defense attorney who can prove the defendant's innocence, work out a good plea agreement or secure a downward departure from mandatory sentencing if in federal court. The Kushner Law Group understands this need and with years of experiences in both the Federal and State Courts of New York, we are here and ready to stand up for you're rights.
Federal and New York State Laws make it a crime to knowingly possess illegal controlled substances and are aggressive and diligent about prosecuting drug offenses that include marijuana, methamphetamine, ecstasy, heroin, cocaine and others. That is why you need to understand the laws and the criminal processes that may be affecting you or a family member charged with a drug crime.
In terms of Federal drug laws versus State drug laws, generally speaking, a majority of federal drug convictions have been prosecuted for trafficking while a majority of state drug convictions were made on charges of possession. Another difference between the federal and state drug laws lies in severity in regards to the sentencing. Generally speaking and largely determinate on the circumstances of the defendants situation, federal sentencing can be harsher and longer as there is no chance of parole in federal sentencing.
Possession of a controlled substance is one of the most common charges especially in state prosecutions. The government will have to prove that:
- The substance was a controlled substance;
- The defendant possessed the substance;
- His or her possession was knowing; and
- The possession was unlawful.
The possession of the controlled substance by the defendant can be physical (in defendant's pocket) or it can be "constructive" meaning the defendant had control over the place where the drug was found or control over the person who had the drugs. It is possible for the prosecution to prove that the defendant had constructive possession of the drug even if he the defendant was not physically present when drugs were found by law enforcement (in a locker).
Often enough drug charges start off as possession charges which than are added on to other offenses. For instance, if law enforcement discovers marijuana in a defendant's house, the defendant can be charged with possession and charged with having cultivating equipment (if there was equipment on the premises used to make or cultivate the illegal drug). In addition, if the amount of the drug is large enough, the defendant can also be charged with distribution, manufacturing and trafficking of the illegal drug.
There are a number of elements the prosecution will look at when determining what to charge the defendant but generally speaking, they will look at the amount of illegal drugs found under the control of the defendant. Smaller amounts found under the control of the defendant will generally garner misdemeanors while larger amounts can equate to felonies with intent to distribute.
Ordinarily cultivation is the growing, possessing, or producing of naturally occurring elements to make an illegal controlled substance (cannabis seeds or marijuana plants etc.) in addition a defendant can also be charged with the manufacture of the illegal substance through chemical processes ( LSD , cocaine, and methamphetamine etc.). Charges for the manufacture of illegal controlled substances demand stiff penalties and having an effective defense is important in order to counter the prosecution's arguments.
Although the drug trafficking laws throughout the many states and the federal government differ in many respects, there is one thing they share in common and that is that the penalties are severe. In New York State the law looks at weights and measurements. If the police find a certain amount and weight of an illegal substance on the defendant, the defendant can be charged with trafficking even if the defendant did not have an intent to sell the drugs.
Mounting a legal defense to drug trafficking charges are always challenging as the government has a lot of resources to draw from. However, New York State Law allows for certain defenses which may include:
- 1. A defense that focuses on a lack of intent that demonstrates that the defendant had no intent on trafficking illegal drugs or to break the law.
- 2. A defense that focuses on a lack of knowledge that demonstrates the defendant had no knowledge that the illegal drugs were on them or on their property and that the drugs did not belong to them.
- 3. A defense that focuses on possession for personal use, which demonstrates that the drugs found on the defendant, were not meant for distribution but for personal use only.
- 4. A defense based on entrapment that demonstrates that law enforcement pushed the defendant into trafficking by the use of an operation whereby the defendant would not have committed the offense by himself or herself.
- 5. A defense based on infancy, whereby if the defendant is under sixteen years of age he or she cannot be charged with drug trafficking in the same way as an adult.
In essence, potential drug related convictions can be serious life changing events that require an experience legal team who will help defend your rights. The Kushner Law Group is here to help you create a formidable defense against the prosecution's charges.
If you have been arrested and want to learn more about the arrest process, click this link: https://kushlawgroup.com/arrest-information/