Interviewer: How long do these cases typically last? Glen Malia: You can expect they’re going to last a couple of months only because on a controlled substance charge, you really need to get a lab report to show the controlled substance. As an attorney, I think that you’re not doing your client any favors by quickly disposing the case without the lab report coming back because there’s a couple of different things that happen, you know, although it’s extremely, extremely rare perhaps that lab reports are back not showing drugs. That’s extremely rare and that’s not something anyone should ever expect but it happens every once in a while really. That’s number 1 why you should get a lab report. It Can Generally Take a Couple of Months to Get a Lab Report in Westchester County In Westchester County, it can frequently take a couple of months to get a lab report only because the numbers of samples that go down in the lab to be tested and generally speaking, when there’s a felony case, the lab reports are needed quicker so they’re in line before the misdemeanors and things of that nature. So, on a controlled substance possession, the case will normally last a few months. Sometimes, it’s to your client’s benefit for the case to drag on because if your client can get him or herself into drug treatment or something of that nature, that can work to their benefit and stuff like that so long as you’re not in jail and except for the fact that the client has to come back to court every once in a while. A Case Taking a Long Time to Resolve is Actually Helpful for the Defendant A case taking a long time does not hurt the defendant, it helps the defendant because all of a sudden, frequently DA office then gets tired of it and it has to figure out a way to get rid of the case quite frankly, and we’ll make a better offer they’ve made. That’s number 1. On a marijuana case, the charges usually go much quicker because marijuana by its very nature, is much more susceptible to be identified by non-expert but a serious marijuana charge, a misdemeanor marijuana charge, there’s no reason not to require a lab report. Frequently, on the unlawful possession of marijuana charge, you can make it go away very easily with first offense UPM, with what they call Adjournment in Contemplation of Dismissal. Adjournment in Contemplation Dismissal May be Employed for a Unlawful Possession of Marijuana Charge Sometimes at the very first court appearance, someone comes in on an unlawful possession of marijuana, the court will agree to adjourn the case for one year if the defendant doesn’t get arrested on any new charges during that one year period of time, the charges are dismissed, that’s an Adjournment in Contemplation Dismissal. Then, sometimes you have a less serious marijuana misdemeanor, sometimes you can work it out to a violation and so that would go quicker but on a controlled substance case, you have to expect that it’ll go on for a couple of months if for no other reason, then they get a lab report to confirm that that’s controlled substance. The Role of Expert Witnesses in Drug Related Cases in New York Interviewer: What sort of experts are utilized for cases like these? Glen Malia: As a defense attorney, you don’t have too many experts. The prosecutor has to prove that it was a controlled substance, so they have to have it, they’ve got to get the lab report and if the case goes to trial, they have to have someone come from the lab to testify to the testing for this sample. What happens is you do not make an application nor get an independent lab report done of the controlled substance. The reason we don’t want to do that is unless there’s a good reason to believe that the substances were not drugs. Then an independent lab report and hiring someone to test the drugs is just going to be an additional evidence against our client because if we do have an independent analysis of it, we’ll have to turn those results over to the prosecutor. Experts that Could Testify to the Lab Report Being Erroneous May be Utilized in a Drug Case Any type of defense that we could raise that the lab made a mistake would not be usable because now, we have a second lab confirming the first lab’s results. So, we’re not going to do an independent lab report and those couple of cases where I’ve been involved with the apparent controlled substance, actually it was not a controlled substance, the Westchester County Lab where the prosecutor sent the drugs have come back showing it’s not a controlled substance, so there’s no reason to believe that the lab is going to come up with the test showing a controlled substance when there really isn’t a controlled substance. Basically, that’s the only expert witness you ever really have in a controlled substance case because the issues come down to an issue of fact, the judge will then have to have a hearing before the trial to determine whether the search was a legal search and things of that nature. Drug Possession Cases are Relatively Simple as Compared to Other Criminal Offenses If the search was not legal, then the case will never go to trial because the drugs would be suppressed and won’t be able to be used against the defendant and now, the prosecutor has no case and if the court determines that search was legal, then we have the drugs and then we have the lab report and that the lab person testifying it has the drugs. Drug possession cases are relatively simple in terms of that, it’s not like you have questions about, false identification or things of that nature or DNA matches, you don’t have any of them in drug possession cases. |