DEFENSES TO POSSESSION OF NARCOTICS CHARGES

By Kenneth A. Vercammen
The defense of a person charged with possession of Narcotics (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 Narcotics. The Municipal Court has jurisdiction to hear the following drugrelated Narcotics offenses: NJSA 2C:510(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:3510(b), using or being under the influence of CDS; NJSA 2C:3510(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:362, possession of drug paraphernalia At the initial interview the defense attorney must determine what happened, what was told to police and the 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. 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. In addition, probation for up to two years, drug counseling, periodic urine testing, alcohol and/or psychiatric counseling and community service may be imposed. Fines and jail vary depending on the amount of drugs and whether the case is heard in Superior Court or Municipal Court. Jail time and fines is explained in greater details in other articles on www.njlaws.com.

The retainer fee must be discussed at the initial interview. I require the full retainer to be paid prior to my entering an appearance. Depending on the case, County and prior offenses, fees range between $1,000- $7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. We try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:57. Do it immediately, do not wait to receive discovery.

Pre trial Intervention/ PTI If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre trial Intervention. For small amounts of marijuana or cocaine, heard in Municipal Court, N.J.S.A. 2C: 36A1 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 24:2127, 2C:4312 or 2C: 36A1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A1(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.). 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. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances. For applicable caselaw on Conditional Discharges, see State v Sanders N.J. Super 515 (App. Div. 1979), State v Banks 157 N.J. Super. 442 (Law Div. 1978), State v Grochulski 133 NJ Super 586 (Law Div. 1975), State v Teitelbaum. 160 NJ Super 450 (Law Div. 1978), State v Bush L34 NJ Super 346 (Cty Ct 1975), State v DiLuzio 130 NJ Super 220 (Law Div. 1974). The defendant must be required to pay a $45.00 application fee, plus the mandatory $500.00 DEDR penalty. 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 also between six 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 sentence is imposed. If the CD is granted at this point in the proceeding, the 6 to 24 month license suspension is mandatory. Pre trial Intervention may be available for first time offenders charged with possession with intent to distribute and other drug charges heard in Superior Court. More details on PTI is available on website www.njlaws.com. TRIAL PREPARATION The prosecutor is responsible for providing full discovery. Rules 3:133, 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). The State must prove the substance seized was a controlled dangerous substance (CDS). 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:3519. 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:35l9(c). 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.