Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Thursday, September 25, 2014

OxyContin, Percodan, Percocet, and Tylox- Controlled, Illegal Schedule II Narcotic


Compiled by Kenneth Vercammen, Esq.
What is OxyContin? OxyContin is a brand name for a specific formulation of oxycodone, a prescription analgesic (pain reliever) that is derived from opium. Oxycodone is a cousin of morphine, a drug used for severe pain relief -- and abused by addicts -- for almost 200 years. In the past, oxycodone has been sold under the brand names PercodanĂ‚®, PercocetĂ‚®, and TyloxĂ‚. There are a number of viable defenses and arguments which can be pursued to achieve a successful result for someone charged with possession of OxyContin or other illegal Narcotics (CDS). Advocacy, commitment, and persistence are essential to defending a client accused of involvement with Narcotics. Our office represents people charged with crimes. Kenneth Vercammen & Associates PC can provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face prison, fines over $10,000, jail, Probation over 18 months and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website njlaws.com provides information on criminal offenses we can be retained to represent people.
In New Jersey, there are drug laws which established Schedules of illegal drugs. New Jersey does not call serious drug offense "felonies". They are called "crimes"
The following is the New Jersey statute setting forth illegal schedule II narcotics, including OxyContin:
24:21-6. Schedule II illegal Narcotics a. Tests. The commissioner shall place a substance in Schedule II if he finds that the substance: (1) has high potential abuse; (2) has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and (3) abuse may lead to severe psychic or physical dependence.
b. The controlled dangerous substances listed in this section are included in Schedule II, subject to any revision and republishing by the commissioner pursuant to section 3d, and except to the extent provided in any other schedule.
c. Any of the following substances except those narcotic drugs listed in other schedules whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.
(2) Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause 1, except that these substances shall not include the isoquinaline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine.
d. Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters and ethers, unless specifically excepted, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation:
(1) Alphaprodine
(2) Anileridine
(3) Bezitramide
(4) Dihydrocodeine
(5) Diphenoxylate
(6) Fentanyl
(7) Isomethadone
(8) Levomethorphan
(9) Levorphanol
(10) Metazocine
(11) Methadone
(12) Methadone--Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane
(13) Moramide--Intermediate, 2-methyl-3-morpholino-1, 1- diphenyl-propane-carboxylic acid
(14) Pethidine
(15)Pethidine--Intermediate--A, 4-cyano-1-methyl-4- phenylpiperidine
(16) Pethidine--Intermediate--B, ethyl-4-phenylpiperidine-4- carboxylate
(17)Pethidine--Intermediate--C,1-methyl-4-phenylpiperidine- 4-carboxylic acid
(18) Phenazocine
(19) Piminodine
(20) Racemethorphan
(21) Racemorphan
The defense of a person charged with possession of OxyContin 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 (CDS). The Municipal Court has jurisdiction to hear the following lesser drug_related 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 OxyContin or other CDS to police [County Prosecutors often downgrade possession of small amounts of OxyContin to this offense;] NJSA 2C:36_2, possession of drug paraphernalia. All other drugs charges are handled in the Superior Court. 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 defendants drivers license for between six months and two years. In addition, probation, 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 OxyContin 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 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 $1,500- $7,000. My standard procedure is once we are retained is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. I try to stay in close contact with the client. I also 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 3:5_7.
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 drugs, heard in Municipal Court, N.J.S.A. 2C: 36A_I 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_l 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.). Since the granting of a PTI or conditional discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendants 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 defendants drivers license for between six months and two years. The conditional discharge period is also between 12 months and two years. PTI can even be longer if the defendant is convicted of a drug offense during the probationary period or violates the conditions set by the court, the prosecution resumes.
Pre trial Intervention may be available for first time offenders charged with possession of OxyContin. More details on PTI is available on website njlaws.com.
TRIAL PREPARATION 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). 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: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 defendants objection to the admission into evidence of the certificate, plus set forth the grounds for objection, 2C:35_l9(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. THE TRIAL The burden of primary possession/constructive possession remains on the State. Plea bargaining is permitted in Superior Court indictable cases. 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). Defense counsel must subpoena its necessary witnesses and prepare for trial 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 defendants 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, defendants 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 a 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. In addition to establishing the item seized is CDS through either a lab report or the State Police chemist, the State must establish the chain of custody. The prosecutors witness will call witnesses to prove the location of the seized OxyContin from the moment of initial seizure to the time of testing of the drug. If the state will be attempting to introduce a confession or other incriminating statements, defense counsel may request on evidence Rule 8 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. The following ideas are sometimes used by defense attorneys to provide defend the charge of possession of cocaine. 1. No discovery Send a discovery letter/letter of
representation to both the District Attorney/Municipal Prosecutor, Police Records Bureau of the law enforcement agency which issued the complaint and the Court Clerk. Failure of the state to provide discovery may be grounds to dismiss the charges. 2. Suppression A timely Motion to Suppress Evidence must be made. 3. Subpoena witnesses: defense counsel should subpoena witnesses, sometimes even serving a subpoena duces tecum on the arresting 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 creates problems if your necessary witness is not present. 4. No lab tests 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 to testify, or the State will have to admit the lab certificate. If the State intends to proffer the lab certificate at the trial, a notice of an intent to proffer that certificate, and all reports relating to the analysis of the CDS, should be served by the state on defense counsel. This includes an actual copy of the lab certificate. Defense counsel must notify the prosecutor in writing of defendants objection to the admission into evidence of the certificate, plus set forth the
grounds for objection. 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. If the state cant introduce lab results, the state cant use the drug as evidence. 5. Chain of Custody The State must then establish a chain of custody. The prosecutors witness will call additional witnesses to prove the locations of the seized drugs from the moment of initial seizure to the time of the testing of the illegal drug. Defense counsel can contest the chain of custody. 6. Confession excluded 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. 7. Constructive possession not proven The burden of primary possession/constructive possession remains on the State. The State must prove it was defendants conscious intention to obtain or possess the item while being aware it was cocaine. Defendants 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. However, mere presence on premises 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.