Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption

Steven Sharp, Staff Writer

The Appellate Division, Third Department determined that the evidentiary presumption of knowing possession of a controlled substance pursuant to Penal Law § 220.25(1) is unavailable in marihuana cases.1 Recently, the Court of Appeals denied leave despite previously employing the presumption to uphold a finding of substantial evidence of marihuana possession in a police disciplinary proceeding.2 It is my position that the Third Department erred in its decision.  To remedy the situation, I call on the New York State Legislature to amend Penal Law § 220.25(1).

In People v. Dan, two police detectives, Dennis Guiry and Jeffrey Connery, received a tip regarding suspicious behavior involving a blue SUV.3 The detectives walked by the SUV and detected a strong odor of marihuana emanating from the vehicle.4 Guiry and Connery decided to conduct surveillance of the SUV.5 Eventually, the defendant, Migel Dan, used a remote to unlock the SUV and he drove away in the vehicle.6

The detectives followed defendant briefly, pulled him over and asked him to step out of the vehicle.7 A canine unit arrived and a drug detection dog “alerted” to the presence of a narcotic.8 A subsequent warrantless search revealed the presence of almost 13 pounds of marihuana in the trunk of the vehicle.9 Continue reading “Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption”

The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution

Marisa Floriani, Staff Writer

In a New York Times article on December 16, 2005, the world became aware of former President Bush’s decision to wiretap Americans via the National Security Agency (“NSA”) in order to obtain terrorist intelligence.1  Although the NSA had predominantly monitored activity abroad, former President Bush had the NSA screen intelligence within the United States borders without a court order for the first time in its history.2  The New York Times article alerted its readers, “The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices . . . .”3  Why the change?  Former President Bush felt that this was “necessary” in order to accomplish an ultimate goal of counterterrorism.4  Although today’s society is constantly worried about the threat of terrorism, which is not likely to dissipate in the near future, Bush’s decision was criticized because it was inconsistent with the rights our forefathers articulated in the Constitution. 

The Watergate scandal is arguably the initial impetus leading to the enactment of the government’s practice of wiretapping.5  Once the committee reviewing the Watergate scandal had reviewed the country’s history regarding wiretapping, it was clear that there needed to be legislation that did not infringe upon Americans’ rights; the Foreign Intelligence Surveillance Act (“FISA”) sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.6  Continue reading “The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution”