How Prosecutors Try to Prove “Intent to Sell” in Drug Possession Cases

The State of New York regularly prosecutes drug crimes. The state penal code distinguishes possessing drugs for personal use from selling drugs for profit. The penalties for selling illegal drugs are much more severe. To convict someone of “possession with intent to sell” the state must prove that the accused planned to sell or distribute a controlled or illicit substance. The prosecution can establish intent in a variety of ways.

One way of proving intent to sell drugs is through a self-incriminating statement by the accused. While this may seem unlikely, the police can and do capture such statements, such as by intercepting communications between the accused and drug buyers or suppliers. This is often done by using wiretaps or other concealed recording devices. The authorities can also use recorded conversations between drug dealers and undercover agents posing as buyers or distributors.

Another major indicator of intent to sell is the quantity of drugs found in the possession of the accused. A person with a large supply of drugs is more likely to be involved in drug trafficking. Conversely, possession of a small quantity of drugs would more likely be for personal use. Therefore, quantity is relevant in any criminal drug case.

The state may also establish intent by way of “prior contemporaneous sale.” The prosecution can produce a witness who testifies that he or she saw the accused selling drugs on one or more prior occasions. The witness testimony as to past criminal conduct may be proffered as evidence of intent to commit the same offense. There are certain limitations and requirements imposed on the state in using prior contemporaneous sale evidence.

Surrounding circumstances likewise can be used to infer intent to sell. Packaging equipment, precision scales and large quantities of small bags can indicate drug trafficking. The same applies to possessing multiple cell phones and keeping large amounts of cash on hand. While having packaging equipment, supplies, cell phones and cash on hand is perfectly legal, the prosecution may use these as supplementary evidence of criminal activity.

In establishing the intent of the accused, the prosecution must meet its heavy burden of proof of guilt beyond a reasonable doubt. A skilled criminal defense attorney will thoroughly test and challenge the state’s evidence as to each element of the crimes charged. Any defect or weakness in the element of intent may result in a charge of possession with intent to sell being dismissed or reduced to a lesser crime.

The Law Offices of Maurice Verrillo, P.C. in Rochester practices criminal defense law in Monroe County and surrounding areas of upstate New York. If you or a family member has been charged with a drug offense, feel free to contact us online or call 585-563-1134 for a free 30-minute initial consultation.


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