Defense Motions to be filed if Drug charges

February
27, 2009

There are a number of viable defenses and arguments, which can be
pursued to achieve a successful result.

Criminal
Law

Defense
to Possession of Drugs and Controlled Substances

Advocacy,
commitment, and persistence are essential

By
Kenneth A. Vercammen

         The defense of a person charged with
possession of Controlled Dangerous Substances (CDS) is not impossible. There
are a number of viable defenses and arguments, which can be pursued to achieve
a successful result. Advocacy, commitment, and persistence are essential to
defending a client accused of involvement with controlled dangerous substances.

         The municipal court has jurisdiction to
hear the following drug related controlled dangerous substances offenses: NJSA
2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish;
NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c),
failure to deliver cocaine or other CDS to police [county prosecutors often
downgrade possession of small amounts of cocaine to this offense]; NJSA 2C:36
2, possession of drug paraphernalia

         At the initial interview the defense
attorney must determine what happened, what was told to police and any possible
defense witnesses to be interviewed. Defense counsel should completely
understand the facts and circumstances of the stop and arrest. Defense counsel
should explain to the client the possible penalties which can be imposed.

Initial
In-Office Interview

         If convicted, the court must impose a
minimum $500.00 drug enforcement reduction penalty and a $50.00 lab fee for
each CDS charge. Moreover, the court must suspend the defendant's driver's
license for between six months and two years (unless extreme hardship). Fines
and jail vary depending on the amount of drugs and whether the case is heard in
superior court or municipal court. In addition, the court can impose probation
for up to two years, drug counseling, periodic urine testing, alcohol and/or
psychiatric counseling and community service may be imposed.

         The retainer fee must be discussed at
the initial interview and you should provide a written retainer statement. For
example, I require the full retainer to be paid prior to my entering an
appearance. My standard procedure, once we are retained, is to immediately send
a discovery letter/letter of representation to both the prosecutor and the administration.

Conditional
Discharge

         For marijuana and small amounts of
cocaine, heard in municipal court, N.J.S.A. 2C: 36A 1 provides that a person
not previously convicted of a drug offense either under Title 2C or Title 24
and who has not previously been granted "supervisory treatment" under
24:21 27, 2C:43 12 or 2C: 36A 1 may apply for a conditional discharge. The
court upon notice to the prosecutor and subject to 2C: 36A l(c) may on the
motion of the defendant or the court, suspend further proceedings and place the
defendant on supervisory treatment (i.e., probation, supervised or unsupervised
attendance at Narcotics Anonymous, etc.). Proof of attendance of such a program
is of benefit at sentencing or an application for conditional discharge.

         Since the granting of a conditional discharge
is optional with the court, defense counsel should be prepared to prove,
through letters, documents, or even witnesses, that the defendant's continued
presence in the community or in a civil treatment program, will not pose a
danger to the community. The defendant must be required to pay a $45.00
application fee, plus the mandatory $500.00 DEDR penalty, and other fees. The
court further has the option to suspend a defendant's driver's license for
between six months and two years.

         The conditional discharge period is
typically between 12 months and two years. If the defendant is convicted of a
drug offense during the CD period or violates the conditions set by the court,
the prosecution resumes. The defendant may even apply for a conditional
discharge after he/she is found guilty, but before the sentence is imposed. If
the CD is granted at this point in the proceeding, the 12 to 24 month license
suspension is discretional, new judges over impose a license suspensions.

Discovery

         The prosecutor is responsible for
providing full discovery. Rules 3:13 3, 7:7-7, State v Polasky, N.J. Super. 549 (Law Div. 1986); State v Tull, 234 N.J. Super. 486 (Law
Div. 1989); State v Ford, 240 N.J.
Super. 44 (App. Div. 1990). File a Motion to Dismiss for Failure of the state
to provide discovery. A timely Motion to Suppress Evidence must be made
pursuant to Rule 3:5 7. Do it immediately, do not wait to receive discovery.

Objection
to Lab Report

         To prove the substance is CDS, either
the lab technician who examined the substance must be called testify, or the state
will seek to admit the lab certificate prepared pursuant to N.J.S.A. 2C:35 19.
If the state intends to proffer at trial the lab certificate, a notice of an
intent to proffer that certificate and all reports relating to the analysis of
the CDS, including a copy of the certificate, shall be served on defense
counsel at least 20 days before the proceeding begins. Defense counsel must
within 10 days of receipt, notify the prosecutor in writing of defendant's
objection to the admission into evidence of the certificate, plus set forth the
grounds for objection, 2C:35 l9(c) See State
v Simbara 175 NJ 37 (2002) and Crawford
v Washington 541 US 36 (2004). Failure by defense counsel to timely object
shall constitute a waiver of any objection to the certificate, thus, the
certificate will be submitted into evidence.

The
Trial

         Defense counsel should subpoena
witnesses, sometimes even serving a subpoena duces tecum on the back up officer
to compel him to bring to court the object allegedly observed in plain view.
Credibility will be tested when the object that was claimed to be in plain view
inside a car is actually only one half inch long. Cross examination is pivotal
in determining credibility. Failure to subpoena a witness may be malpractice if
your necessary witness is not present.

         The burden of primary
possession/constructive possession remains on the State. Plea bargaining is not
permitted in Municipal Court CDS cases (while it is available in such varied
charges as murder, careless driving, or the burning of old tires). Plea
bargaining is permitted in Superior Court indictable cases.

         The state must prove knowledge or
purpose on the part of the defendant. Knowledge means that the defendant was
aware of the existence of the object and was aware of its character. Purpose
means it was defendant's conscious object to obtain or possess the item while
being aware of its character. Knowledge of the character of the substance may
be inferred from the circumstances. 33 N.J.
Practice Criminal Law & Procedure (Miller) Sec. 378 p. 563 (2nd Ed
1990).

         If actual possession cannot be
demonstrated, defendant's constructive possession may sometimes be shown by
proof that the narcotics were subject to dominion and control. If two or more
persons share actual or constructive possession, then their possession is
joint. Mere presence in premises with other persons where CDS is found is not
sufficient, in itself, to justify an inference that a particular defendant was
in sole or joint possession of the substance. State v McMenamin 133 N.J. Super. 521, S24 (App. Div. 1975). In State v. Shipp, 216 N.J. Super. 662, 666
(App. Div. 1987), it was held there was insufficient evidence that the
defendant, a passenger in the front seat, had constructive possession of CDS
contained in envelopes secreted in a vinyl bag resting on the back seat next to
another passenger in the car.

         The state must establish the chain of
custody. The prosecutor's witness will call witnesses to prove the location of
the seized drugs from the moment of initial seizure to the time of testing of
the illegal drug.

         If the state will be attempting to
introduce a confession or other incriminating statements, defense counsel may
request an evidence rule hearing to determine if the requirements of Miranda v. Arizona 384 US. 436 (1966)
have been violated. If the defendant elects to take the stand defense counsel
must be certain that he testifies with complete candor and does not try to
embellish his protestations of innocence.

Conclusion

         Drug related offenses carry substantial
penalties, which will affect a client for the rest of his life. The space
limits of this article do not allow detailed explanation of the extensive case law
on controlled dangerous substances.

         Vercammen is a trial attorney in Edison. He often
lectures for the New Jersey State Bar Association, New Jersey Institute for
Continuing Legal Education and Middlesex County College on personal injury,
criminal / municipal court law, and drunk driving.