There are some important legal concepts to be aware of when evaluating a drug or weapons charge. Most people do not realize that several different individuals can be charged with “possessing” the same weapon or quantity of drugs at the same time. The definitions below of the Automobile and Room Presumptions explain how this is possible under New York State Law. We are intimately familiar with these “presumptions” and how prosecutors try to use them to convict all the occupants of a car or home with possession of a single gun or package of narcotics. With the right experience and tactics these cases are very defendable.
Automobile Presumption: EVERY person in a car where drugs or a gun are found can be charged with possession of the drugs or gun, unless the item was hidden on the body of one of the occupants. This is even true if the item was in the trunk or glove box and not all the occupants knew it was there. It is a very common tactic for a prosecutor to charge four or five people with the same gun or package of narcotics. Because of this, many defendants have found themselves charged with a crime for just being in the wrong place at the wrong time.
Room Presumption: Any drugs or guns in open view in a room are presumed to be possessed by EACH AND EVERY person in close proximity to them at the time the items were found, unless the item was hidden on the body of one of the occupants. Many of our clients have found themselves charged with “possession” for being at a party where drugs were being used.
CRIMINAL POSSESSION/SALE OF CONTROLLED SUBSTANCES OR MARIJUANA
Criminal possession/sale includes owning, holding, selling, giving, sharing or controlling any amount of illegal drugs. The type and quantity of the drugs affect the level of crime charged and whether it is a misdemeanor or a felony. Marijuana has its own misdemeanor and felony parameters, which are generally not as severe as other drugs such as crack, cocaine, heroin or prescription drugs. Below are some important legal terms used in these cases:
Buy & Bust: A buy and bust case involves an undercover officer purchasing drugs from a seller and then notifying a nearby backup team with a description of the seller. Upon arrest, the seller may be found to possess additional drugs or the marked "buy money."
Observation Sale: An observation sale is when an officer personally observes a drug transaction but does not participate in it.
CRIMINAL POSSESSION OF A WEAPON
Weapon possession charges can come in a variety of forms, ranging from misdemeanors to felonies, based on the specific facts of the case and the type of weapon. Items other than guns that can be considered illegal weapons include mace or pepper spray, electronic dart or stun gun, gravity or switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, blackjack, metal knuckles, chukka stick, wrist-brace type slingshot and Kung Fu star.
The most serious count is Criminal Possession of a Weapon in the Second Degree, which is when a person is charged with having an unlicensed, loaded handgun outside of the home or place of business.
Another common charge involves the possession of any firearm, rifle or shotgun by someone previously convicted of a felony. This includes people convicted of DWI and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree.
Weapons charges can also be based on the Automobile and Room Presumptions as outlined above. It is not uncommon for the District Attorney’s Office to charge multiple occupants of a house, apartment or car with possession of the same weapon.
SAFE ACT VIOLATIONS
New York State enacted the Safe Act in 2013. As time has passed it has proven to be a poorly constructed and highly unpopular law. The lawyers at Nobles & DeCarolis have had numerous cases and great success in defending clients against these charges.
Gun or drug charges can result in lengthy state prison sentences, so it is important to hire a knowledgable and experienced attorney. The lawyers at Nobles & DeCarolis have successfully defended numerous charges such as these.
If you or a loved one has been charged with a drug or gun charge
call Nobles & DeCarolis today (585) 546-1260