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I was charged with possession of a controlled substance,

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paraphernalia. The officer lied in...
I was charged with possession of a controlled substance, paraphernalia. The officer lied in his report creating probable cause to search me. The PD wears cameras however throughout the discovery process, the PD is stating there is no video available. The report also says the drugs were tested and photographed. Again, the PD is now stating there is no photos or test results of the drugs and paraphernalia found. We set the matter for trial however, it seems to me that there must be something we can file to end this matter before it goes to trial. What are my pre trial options to end such a matter in this situation? I have no record or prior charges. Can I file summary judgement?? Motion to suppress evidence??
Submitted: 3 months ago.Category: Criminal Law
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3/26/2018
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 3 months ago
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 31,329
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi,

I'm Zoey.

I've reviewed your post. Don't you have an attorney for this matter? If you're going pro-se, have you been dealing with the prosecutor with regard to the discovery and made a demand for all police reports and videos?

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Customer reply replied 3 months ago
I just left court and asked the judge for more time to request additional discovery and the judge said there doesn't appear to be any asking the DA to confirm. The DA said the PD has stated no video, photos or test results are available. So the judge denied my request for more time and set matter for trial. Seems odd suddenly no evidence is available despite the report stating photos were taken and drugs were tested
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 3 months ago

If the prosecutor deliberately is withholding evidence, that would be prosecutorial misconduct. If the evidence is exculpatory, that would also be reversible error if you were convicted after trial.

YOu cannot be convicted of possession of a controlled substance unless there is a lab report confirming that the drugs recovered were really a controlled substance and not fake. Without a lab, you should move to dismiss that charge.

In any case, it looks to me as if you're being jerked around. The prosecutor is entitled to believe his officers if they say no reports exist, but I don't know how thoroughly he has looked into his officer's assertions, and I think the DA is capitalizing on the fact that you don't appear to be system-wise. If you're going to end up on trial with this case, or to make sure you don't have to go to trial on this case, you really need a lawyer and should show up with one on the next date.

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Customer reply replied 3 months ago
I had a lawyer, she was with me at court. We asked for more time to review additional discovery and the judge said it didn't appear to be any additional disco and the DA confirmed saying there was no video, no photo and no test results so the judge said there you go, no additional disco so you don't need additional time. THe matter was then set for trial. Now my attorney wants another 5k to go to trial and that doesn't include any 3rd party fees. THis is a misdemeanor charge mind you.
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 3 months ago

$5,000 for a misdemeanor trial is not out of line for an experienced lawyer. A felony trial would cost well over $15,000.

When police lie on their reports, that's good news for the defense. In this case, the fact that the reports mention specific discovery that isn't available after all would give your lawyer an opportunity to argue sloppy policework and to bring in the possibility that they deliberately destroyed evidence that would not have supported their case.

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Customer reply replied 3 months ago
Ok so when I was arrested I was standing outside the car on the passenger rear end of the car. The cop told me to sit on the curb while he talked to person in car. He saw a pipe in the front center console of the car and asked the person if the pipe was hers and she said no. The cop immediately turned around and told me to put my hands behind my head, told me I was under arrest and then searched me and found controlled substance. Then in the police report the cop said he was talkiing to me outside the car and looked down and saw a pipe by my feet and he asked me if it was mine and I said yes. This portion was completely made up from the truth. If I remember correctly, at one point he said his badge camera was on. Also in the report, he says the controlled substance he found in my pocket tested positive for meth. However, no video, no photographs and no test results are available. So my question is what can I file to get this dismissed prior to trial? Summary Judgement? Motion to suppress evidence??? Any grounds to dismiss?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 3 months ago

You can always try a motion to dismiss, however questions of fact are what trials are for. Likely a judge will decline to dismiss without hearing all of the evidence. You can get a hearing to challenge the constitutionality of the search. If your rights were violated, evidence seized could be suppressed and there would be no case.

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Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 3 months ago

Just checking in to see if you need more help or any clarification of my answer. If so, please reply here on this question thread.

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