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Difference Between Misdemeanor And Felony Drug Possession Charges

Interviewer: How much does one have to have in order for them to get a misdemeanor versus a felony?

Attorney: In New York State it’s by statute. The statute describes it by weight. If you pull, if we take a look at a marijuana statute, it will talk about for a misdemeanor, it talks about having more than 25 grams. That’s a B misdemeanor. For an A misdemeanor, it’s having an aggregate weight of more than two ounces. Then it works it way up into the felonies. You have for an E felony more than eight ounces. For a Class D felony, marijuana in the second degree, now we have an aggregate weight of more than 16 ounces. Then we have criminal possession of marijuana in the first degree, which is a Class C felony. We have an aggregate weight of more than 10 pounds.

Depending on How the Drug is packaged and What the Weight is Will Determine What Degree of Crime and Punishment It Gets in New York State.

The same thing happens with the narcotics and controlled substances. Depending on what the substance is and how it’s defined in the public health law and how it’s then defined in the statutes, it depends on whether it’s a controlled substance or a narcotic drug, and the same thing, how it’s packaged, will determine the weight, and what the weight becomes will decide how it is that it’s going to be charged, as a misdemeanor or as a felony and what degree of each.

Illegal Search and Seizure for Drug Crimes is Quite Common in New York

Interviewer: Are people generally aware about illegal search and seizure or are police officers aware of what they’re doing, and how does that relate to drug crimes?

Attorney: Yeah, because where do we find drugs most commonly? You find drugs in automobiles, in apartments or houses or in somebody’s pocket. Again, very seldom do I give a lot of credibility to the police officer who comes in and says I pulled the car over for a tail light being out and when I approached the car I saw these drugs sitting on the console in the middle of the front seat. It’s not credible. It’s kind of silly.

What tends to happen is people not knowing their rights to privacy. If it’s your car, you have an expectation of privacy in your own car. You have an expectation of privacy to the belongings in the trunk of your car. You have an expectation of privacy in your own home and in your back yard and on your property.

People are Mostly Intimidated by the Police into Consenting to an Unwarranted Search

A lot of times the police will come over and they’ll say something to a driver of a car to intimidate them and get the driver to consent to letting the police search the car even though the people know that they have drugs in the car. Same thing, they allow cops to come into their house or to answer questions about, “Do you have anything in your pockets?” Why would a police officer ask me if I have anything in my pockets? It’s really none of his business what’s in my pockets.

The police have a certain procedure. We have constitutional rights as to when a police officer can stop a person, whether it’s on foot or by automobile, when they can detain that person, when they can pat them down for safety reasons, when they can search a person, when they can seize a person, when they can seize any kind of property that’s on these people.

People Are Mostly Unaware Regarding Their Rights to Privacy

The fact that people think they know their rights sometimes and they don’t or they don’t know their rights at the wrong time when they should know them allows the police to gather a lot of evidence, and that creates problems down the road as to how to suppress or have these drugs or the proceeds of any kind of wrongdoing thrown away. That’s really the biggest hindrance to us as attorneys.

To me, a client of mine who for some reason consents to letting the police officers search their car or their person, knowing that they have something on their person, that the police would not ordinarily be allowed to do.