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220.55 Criminally using drug paraphernalia in the first degree2 Feb 2019

In New York, a person may be charged with criminally using drug paraphernalia in the first degree when they have previously been convicted of criminally using drug paraphernalia in the second degree. In addition to the prior conviction, the prosecution must show that you possessed the following:

  • Diluents, dilutants or adulterants
  • Gelatine capsules, glassine envelopes, vials, capsules or any other material that can be used to package narcotics; or
  • Scales and balances used or designed for the purpose of weighing or measuring controlled substances

There must also be evidence that the possession was under circumstances indicating that the item would be used to sell or manufacture drugs.

What type of evidence could be used by the prosecution?
To prove its case, the prosecution could use a variety of evidence. This may include:

  • The tangible item alleged to be paraphernalia
  • Drug test results
  • Statements made by you
  • Evidence of drug use

The prosecution must be able to prove each element of the crime beyond a reasonable doubt. If the prosecution cannot prove each element at this standard, then you should be acquitted and the case dismissed.

What are the penalties for criminally using drug paraphernalia in the first degree?
Criminally using drug paraphernalia in the first degree is a Class D felony which carries the potential for significant penalties. Because this crime is a felony, you face the potential for prison time of 2-7 years. There may also be significant financial penalties, probation, mandatory treatment, and community service.

A felony conviction has serious consequences for your criminal record. It could limit future employment opportunities and certain civil rights.

Because of the potential for serious consequences, it is important that you have representation from an experienced criminal defense attorney.

Are there any defenses?
There may be defenses available to criminally using drug paraphernalia in the first degree, including:
1) The item was not possessed with the intent to use, sell or manufacture drugs: Many of the items listed on the statute have legitimate using. For example, you may possess an item to treat a medical issue. The mere presence of the item without evidence that it is being used in relation to illegal drugs is not enough to be convicted.

2) Evidence was obtained in violation of your rights: The United States Constitution protects certain individual rights. If the police or prosecution violated any of these rights during the investigation or court process, then you may have evidence excluded or the case dismissed. This includes the right against unreasonable searches and seizures, right to an attorney, the right to remain silent, the requirement that police advise you of your rights before an interrogation, and the right to confront witnesses.

For example, if the police search your vehicle without a warrant or your consent, and there is no other justification (such as the odor of an illegal substance or visible paraphernalia), then the search may have been illegal. Thus, any evidence obtained from the search would be inadmissible in court.

Do you need an attorney?
Under the United States Constitution, person who are charged with a crime have the right to be represented by an attorney. It is not required to have an attorney, but you are better protected by having legal counsel. An attorney understands the law and how it applies to your situation.

An attorney can request the information related to your case from the prosecution through the discovery process. They can also obtain information and evidence through the use of subpoenas. An attorney will review the case to determine whether there are any defenses available. If there are defenses, then an attorney can file the necessary motions or take the required action to raise those defenses.

An attorney will strive to negotiate a result that is fair under the circumstances. If the prosecution is able to prove the elements of the case, then an attorney will strive to negotiate a plea agreement that minimizes the consequences as much as possible.

If you have been charged with criminally using drug paraphernalia in the first degree, then contact our firm to schedule an appointment.

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