In any criminal case in New York, the prosecution must meet its burden of proof. That burden is beyond a reasonable doubt. Each offense has its own elements of proof, and the prosecution must prove each and every one of those elements. If it fails to prove any single element of an offense, the case fails in its entirety. To prove a defendant guilty of possession of heroin, a prosecutor is required prove the following elements:
- That the defendant possessed a substance containing heroin
- He or she knowingly possessed it
- The possession was unlawful
It need not be on your person
The defendant need not be in actual physical possession of heroin. He or she might only be in constructive possession of the drug, but constructive possession is sufficient for a conviction. To prove constructive possession, the prosecutor need only show that the defendant had control over the person or place where the heroin was found. He or she need not even be on the premises where it was found when it was found. That’s why the common defense of “that’s not my stuff” won’t work in some cases. The most serious possession of heroin charge in New York is classified as an A-1 felony. An A-1 felony is punishable by up to a life sentence with a minimum to be served between eight and 20 years in prison. The least serious is a misdemeanor that’s punishable by up to a year in a county jail.
It’s the weight that determines trafficking
While some people might think of heroin trafficking as large international operations, a person can be convicted in New York of heroin trafficking on a smaller level if he or she manufactures, transports, sells or distributes the narcotic. Weight is the key to whether a person might be charged with trafficking. If a person is found with a designated amount of heroin, he or she can be found guilty of heroin trafficking. A second conviction carries up to 24 years in prison.
Proving the elements of heroin trafficking
To prove a person guilty of heroin trafficking, the prosecution must show the following elements:
- That the defendant knowingly possessed a substance containing heroin
- That the substance was equal to or greater than the amount for trafficking
- Possession of the substance was unlawful
Whether the defendant was selling, transporting or distributing the heroin is irrelevant so long as the as he or she possessed the requisite amount of it under the trafficking statute.
As the elements of possession of heroin with intent to deliver are even easier for the prosecution to prove on a federal level, simple possession of even a small amount of the narcotic is often charged as possession with intent to distribute. Under federal law, simple possession of any amount of heroin is punishable by a year of jail time and a minimum fine of $1,000. If the offense involves trafficking in heroin at the lowest level, federal sentencing guidelines call for a minimum sentence of up to 20 years in prison and a fine not to exceed $1 million.
If you’ve been charged with a crime involving the possession or trafficking of heroin, the legal consequences can be severe, and they can stay with you for a lifetime. Having been former federal prosecutors ourselves, we know what successful prosecutions and defenses consist of. A conviction for possession or trafficking in heroin doesn’t have to follow you around for the rest of your life. There are legal alternatives, but you need the right legal representation to exercise the alternatives that are available for you.
We have over 30 years of both state and federal drug law experience. Both judges and prosecutors respect us. Don’t give the police or prosecutors a confession or statement. Exercise your right to remain silent along with your right to an attorney immediately, and call us right after any drug arrest. We can arrange for a free consultation and case evaluation at any one of our three offices.