Posts tagged with "possession of narcotics"

Attorney Did Not Ineffectively Represent Her Non-Citizen Client, Despite Failing to Seek Plea Agreement That Would Avoid Deportation

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In a criminal law matter, a Superior Court of Connecticut denied a petition for a writ of habeas corpus, because the petitioner’s claims of ineffective assistance of counsel were unpersuasive.

Case Background

In this case, the petitioner, a legal resident of the U.S., was charged with larceny in the first degree and possession of narcotics. Trial counsel discussed the possibility of participation in the Connecticut Alcohol and Drug Abuse Commission (CADAC) program, which upon successful completion would result both in dropped charges and avoiding deportation. However, the petitioner did not want to undergo drug addiction treatment, so this option was not pursued.

Defendant Unable to Escape Deportation

Trial counsel was extremely knowledgeable about the immigration consequences of non-citizen defendant convictions. As such, she made it a part of her regular practice to thoroughly discuss such with her clients. The State presented the petitioner with a plea agreement that would result in no jail time.

While trial counsel told her client that the deal was good for that reason, because of the petitioner’s legal status and the nature of the charges, accepting the plea would subject the defendant to mandatory deportation. She did not attempt to provide an alternative agreement or counteroffer that would avoid deportation, nor did she discuss such possibilities with the petitioner. Thus, the petitioner accepted the State’s terms, and during the plea canvass, he responded that he understood the possible immigration consequences of the plea.

The petitioner was given a suspended sentence, but violated his probation with another drug offense. New defense counsel unsuccessfully attempted to negotiate terms that would avoid deportation, and the petitioner came to the attention of immigration authorities once he was incarcerated. He filed a petition for a writ of habeas corpus claiming ineffective assistance of trial counsel because counsel did not properly investigate the petitioner’s legal status and risk of deportation; he was not properly advised regarding the risk of deportation; and counsel did not include his immigration status and deportation risk as part of the plea bargaining process.

The Court’s Verdict

When a court considers an ineffective assistance claim, it applies a two-part test from Strickland v. Washington: deficient performance and prejudice to the outcome of the case. A habeas petition can be denied on either ground. In this case, the Superior Court did not believe that trial counsel’s conduct was deficient. It credited the extent of her background and training in immigration matters, and found that she properly advised her client on the consequences of accepting the plea agreement.

The Court further noted the petitioner’s unwillingness to participate in the CADAC program, which “demonstrates that the petitioner was not concerned with the possible immigration consequences of his situation.” Further evidence of the petitioner’s understanding is found in the plea canvass, where the trial court specifically asked whether he knew the consequences of pleading guilty, to which he responded “yes.” Finally, that trial counsel did not present an alternative plea or counteroffer is not a duty imposed on attorneys in this State in the context of ineffective assistance of counsel. Therefore, the Superior Court denied the habeas petition.

Written by Lindsay E. Raber, Esq.

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Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

State’s High Court Finds Drug Offense Convictions Proper Where Defendant Constructively Possessed Narcotics and Cannabis in His Wife’s Car

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In a criminal law matter, the Supreme Court of Connecticut held, in part, that the State presented sufficient evidence to convict the defendant of drug possession charges under the theory of constructive possession.

Case Background

This case arose from an incident that occurred on September 18, 2007. Narcotics officers initiated a valid traffic stop of the defendant, who was driving his wife’s vehicle with a friend in the passenger seat. The defendant avoided answering questions and “began nervously placing his hands inside his sweatshirt pockets and under his clothing.” The officer became concerned for his safety and ordered the defendant to keep his hands visible, but the defendant refused and a physical altercation ensued. During the struggle, a white package fell from the defendant’s pocket to the ground. It contained five wax folds that held a white powdery substance consistent with heroin.

The defendant was placed under arrest, and a subsequent search of his person revealed rolling papers and $552 in cash. While being brought to the patrol car, the defendant twisted out of the officers’ grip, lunged for the package and swallowed it, then “laughed at the officers and said, ‘gotcha.’” After both the defendant and his friend were placed in the cruisers, a search of the vehicle revealed two bags of crack cocaine and three bags of marijuana located in the center console.

Nonexclusive Possession of Narcotics

The defendant was subsequently convicted of possession of narcotics, possession of a controlled substance, interfering with an officer, and tampering with physical evidence, in violation of Connecticut General Statutes §§ 21a-179(a), 21a-279(c), 53a-167a, and 53a-155. On appeal, the defendant argued, in part, that the court “improperly applied the doctrine of nonexclusive possession,” resulting in insufficient evidence to convict him of the possessory offenses.

In a case where the State cannot provide direct evidence of drug ownership, they must present a theory of nonexclusive possession. In other words, to prove illegal possession, the State must establish that “the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.” This theory is most often set forth where the drugs were not located on the defendant’s body, but in other areas, such as his home or vehicle.

However, where the defendant is not in exclusive control of the premises (for example, there are other vehicle occupants), it is improper to infer that the defendant “knew of the presence of [the substances] and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.”

The Court’s Decision

In this case, the Supreme Court determined that the theory of nonexclusive possession was properly exercised, and a jury could have reasonably concluded that the drugs belonged to the defendant. The defendant was driving the vehicle belonging to his wife, which made it more likely that he, not the passenger, was aware of the drugs in the center console. Drugs and related items were found on his person, making it more likely the cocaine and heroin belonged to him rather than his wife or the passenger.

Finally, medical records revealed that on the day of the incident, a urinalysis revealed the presence of cocaine and opiates in his system. Therefore, there was sufficient evidence to convict the defendant of the possessory counts, and the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

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When faced with a charge for possession or distribution of controlled substances, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-211-3100 or at JMaya@Mayalaw.com.