Caught with Oxy, What Now?

If you are caught with OxyCodone, you can be charged with a criminal offense, even though it is a legal, prescription drug. Commonly referred to as OxyContin or Percocet, it is a narcotic pain reliever prescribed to treat moderate to severe pain. Although it is a legally prescribed drug, there are still some serious side effects. Abuse can cause dependence, withdrawal symptoms, and even overdose. According to the CDC, over 16,000 people died from Oxy related overdoses in a year.

It is highly addictive and has become popular in drug trade. Many patients resort to illegal means when their prescription runs out and their doctor won’t prescribe anymore—this is when most people get caught.

Penalties

Under the Federal Controlled Substances Act, OxyCodone is classified as a Schedule II controlled substance due to a significant risk of addiction and high potential for abuse. Illegally obtaining Oxy, or even just the prescription itself, is a serious crime in New York. Article 178 of the New York Penal Law states, “A person is guilty of criminal diversion of prescription medications and prescriptions… when he or she commits a criminal diversion act.” A criminal diversion act is any act (or acts) in which an individual deliberately:

  • Transfers or delivers either a plain prescription or the actual prescription medication for payment, while knowing the recipient does not need the medication or prescription for medical purposes
  • Receives a plain prescription or the actual prescription medication, while knowing that the seller has no legal authority to sell the medication or prescription

Depending on monetary amount found in possession, if there was intent to sell, and the offender’s past record, the charges range from a Class A Misdemeanor—the least severe—to a Class C Felony. The penalties include incarceration, steep fines, community service, and mandatory participation in a drug abuse program.  At the very least, a Class A misdemeanor controlled substance charge can result in a fine of $1,000 and up to 1 year in prison. Possession of larger amounts can lengthen the prison time and increase fines. If you are charged with intent to distribute, the penalties are more serious.

If you’ve been charged with possession of a controlled substance in New York, it is important for you to talk to an attorney right away. Possession of drugs in New York can result in fines and periods of incarceration. Stephan Jacob Siegel, Esq. is a criminal defense attorney who has tried over 1200 cases in a period of 30 years. Contact his law office today to start building a solid defense for your case. Call us for a free consultation (718) 575-3900.

Second Degree Aggravated Harassment: What You Need To Know

One of the more common criminal arrests in New York is for Second Degree Aggravated Harassment, which police take seriously and often move to arrest first and ask questions later. It can often be defended against, as one of the cornerstones in harassment law involves an individual having reasonable cause to fear for their safety. This is not always clear-cut in second degree aggravated harassment cases, and it must be proven that regular threats have crossed a line into harassment, a serious charge for all involved. Here is one interesting case that has to do with this law, NY 240.30.

People v. Gibbs: This was a particularly interesting case in which the defendant left an angry message on the mobile phone of an associate, screaming at them about a third party who had harmed the defendant, and adding additional threats against the person in receipt of the call. The message remarked angrily on the police’s involvement in the case, and additionally ending in a threat that if “you think it’s bad what I did to David, you’re going to see what’s going to happen to you.” The individual who received the message reported it to police, and said that it made her fear for her physical safety. However, the court found that this evidence was not legally sufficient.

Establishing the Crime: In order to successfully establish the crime of second degree aggravated harassment, the prosecution must prove to have satisfied the following four elements:

  1. The accused had intent to harass the complainant
  2. The defendant caused the communication to occur
  3. There was a threat of physical harm
  4. The defendant knew that the complainant would have a reasonable fear of harm from the communication

If even one of these elements was missing from the complaint and could not be proven, it would be very difficult for the case to go successfully. In the case of Gibbs above, the court said that the threat did not go into specifics of what would happen to the complainant, and it was not a cause for immediate concern.

Fully knowing what must be shown to prove a fear of reasonable threat, as well as the intent and action for it to happen is a key tool in a successful defense for any charge of second degree aggravated harassment. There cannot be any ambiguity in the above four elements, and without those, the case can even be dismissed.

Know your Options: If you are being accused or charged with second degree aggravated harassment, you should immediately consult with an established and experienced attorney. Here at Queens Criminal Defense Law, we provide a wide variety of defenses for our valued clients throughout the New York metro area. For a free consultation about my three decades of extensive work and expertise, call me, Stephan Jacob Siegel, today at 718-575-3900 to learn more.

Drug Possession Charges

It’s well known that drug possession charges carry vastly different penalties depending on the type and amount of the substance which was involved. A wide scope of drugs in New York, including heroin, cocaine, MDMA and marijuana are all illegal and can include criminal charges for personal possession for use even if you do not intend to sell them later. A ‘personal use’ offense in our state can result in a misdemeanor charge with up to a year in jail.

One of the biggest issues with these charges is that the law allows a police officer to determine that the substance you possess is controlled even if they haven’t tested it yet. If a member of NYPD determines that a white powder or pill that you have is an illegal drug based on their experience and the situation, you will at least have a court date and rap sheet before the substance has even been analyzed. This is true even with very small amounts of substances, as evidenced in the below cases.

People v. Kalin: This was one of the first cases held where police officers can establish a substance as illegally controlled without a lab report, and will go to place a legal complain even if the lab report later comes up negative. This is also true if the drug is in residue form and cannot even be ingested for the drug to take effect. Baggies of drugs are easily identifiable, but the law holds that even much smaller amounts will count in court at least initially. This case took place in 2009.

People v. Smalls: Just last year, the NY court of appeals ruled on a case of residue arrest on a charge of Criminal Possession of a Controlled Substance in the Seventh Degree. In this charge, the arresting officer used his experience to determine that the small substance was legitimate because of the possession of a glass pipe generally used by drug users, as well as other warning signs.

The Good News: While the two above cases and the law on allowing officers to move forward in a case without clear proof of the accuracy of the drugs’ reality can be discouraging, there is a silver lining. If or when a case does move to trial, it will require a laboratory testing instead of just the officer’s assumptions. There is an increased burden of proof once it moves to trial, which means that through laboratory testing you can be exonerated far more easily.

Your Options: If you are being charged with drug possession for personal use and it is a small amount, you have a good chance of fighting the charges in court. You will benefit highly from working with an experienced criminal defense attorney. With over thirty years of experience representing clients in New York, you can count on me, Stephan Jacob Siegel to help. For a free consultation on my services, call me today at 718-575-3900 to begin moving forward on your case.

Understanding Check Fraud

Under New York penal law, the penalties associated with both felony and misdemeanor forgery can result in steep sentencing of years in prison and additional fees. While sentencing can vary greatly be the severity of the crime in which you were charged—from third to first degree—one of the points that they all have in common is that your intent to defraud must be proven beyond a reasonable doubt. Here’s an example of one interesting case from 2014 that had to deal with fake checks.

People v. Zeller: This case involved a New York woman who created fake checks that included her own name and information, so she was not attempting to present herself as someone else. She then gave them to a third party, and while the intent throughout was decidedly fraud, the checks were not technically falsely made and the courts dismissed charges of Second Degree Criminal Possession of a Forged Instrument. Had she been convicted of this charge, she would have been faced with up to seven years in federal prison, separate from the other levied charge of Grand Larceny in the Second Degree.

The Importance of Zeller: This case shines a revealing light on the different types of check fraud that can be applied in cases of Forgery and Criminal Possession of a Forged Instrument. It will not be a defense for individuals who are accused of falsifying a signature of someone else on one of their checks, since that was not the case in Zeller’s circumstances. The main importance here was on the maker of the checks, rather than their authenticity or lack thereof.

However, when it comes to instances of “fabricating instruments”, like Zeller making her own checks, it can be a central defense precedent. It is not a get out of jail free card, and there are many other charges that can be levied against this type of crime which are not defensible by the Zeller precedent. Those stipulations considered, it is certainly an interesting and valuable new part of the New York penal code that is worthy of consideration by all defendants.

Your Options: If you are a resident of Queens or the greater New York City Metro area, you can find top notch quality service here with me, Stephan Jacob Siegel, Esq. If you have been charged with forgery for check fraud or using forged instruments, I will use revealing cases like the Zeller case above to craft a solid defense strategy for my clients.

For over thirty years, I have represented by clients with the utmost professionalism and have an excellent success rate and extensive courtroom experience. I handle many areas, including white collar criminal defenses, fraud and embezzlement, internet crimes, health care fraud, insurance fraud, and real estate fraud. For a free consultation about my services, call the office today at 718-575-3900; you’ll be glad that you did.