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North Tonawanda woman falsely accused of drug
possession by New York Police?

Guilty Until Proven Innocent or the Other Way Around?

By Darryl McPherson

Anna Nicotra

This is a cautionary tale. A tale about perception, presumption and powerlessness. Beware, because, but for - it could happen to you.

Anna Nicotra is a friend of the Reporter and Frank Parlato; she has done some work as a photographer for the paper. That fact doesn’t make her a better or more credible person, but it illustrates that she is a part of this community. A resident of North Tonawanda, she’s the mother of four children. As you read this, she’s been sitting continuously in the Rose M. Singer Center, a female holding center on Riker’s Island since September 19.

After driving to the Big Apple to do some shopping, she dropped her car off at a parking garage and hit the stores. Hours later, she grabbed a cab to get back to the garage. The nightmare began when the taxi was pulled over by the police. Apparently, the distress light was on, which indicates to police that the driver may be in danger. But the driver told the police that he must have hit it by mistake.

As Nicotra reports it to the Reporter, the police then questioned her, examined her identification and learned of an arrest warrant in Buffalo. Allegedly, she missed a court date while she was in Florida after being told the charge against her would be dismissed. When she failed to appear, the warrant was issued. The New York City Police took her into custody, but assured her that she would be fine.

The next day at her arraignment, things turned far less than fine. Her lawyer informed that she was being charged with criminal sale and criminal possession of a controlled substance in the first degree, a class A felony. Apparently, an ottoman in the trunk of the cab, police discovered had concealing inside it three bags of heroin. The cab driver claimed it belonged to her.

“I can’t even describe it; I never saw it,” Nicotra says. The drugs were found in the trunk of the cab and inside a piece of furniture that is in no way linked to her.

“I found out when I went to court and I was arraigned on these charges and it’s all because this guy, which was the driver, had said the furniture was mine! When I hailed the cab, he didn’t get out of the cab and open the trunk. I simply walked up to the cab, the trunk was closed. He was sitting there waiting for a fare, it looked like to me.”

Being criminally charged with something simply for being a passenger in a taxi should be unfathomable. If one believes that the law exists to protect the innocent, this should not be possible. If I were defending this case, I would point to various issues.

There were no drugs found in her car at the garage, there is no receipt for an ottoman purchased in New York City, though she can establish she came to New York City to shop. Essentially, there is nothing linking her to this piece of furniture, but the word of a cab driver with whom she has no previous association.

However, here is where the line between “circumstantial evidence” and “prejudicial facts” becomes dangerous.

Nicotra did have a previous arrest for drug possession. As she explains it, “I was driving down Niagara Street and charged with possession of a controlled substance, which were my prescription pain pills in a medical box that I carried around. At this time, I did not know I had to carry around paperwork from the drug store. I had that case dismissed. I was actually driving, talking on the cell phone, got pulled over, they searched the car, got an appearance ticket, went to court and it was all dismissed.”

A real investigation into what happened when Nicotra entered the cab (or more importantly, what happened before) may have made a significant difference. Based on the statement from the NYPD detectives, she was held on $150,000 bail. The arresting detective, Dino Polichetti, was contacted by the Reporter, but he declined to comment.

The risk to the common person is the concept of constructive possession, which will find you legally guilty of possessing an illegal substance if these elements exist: it is found in close proximity, you have knowledge of its presence and you have control over it. There are various legalistic twists to it, but once you are charged, your best defense is to prove you did not have any knowledge of the substance’s presence.

When questioned by the Reporter, Nicotra’s attorney, Steven Pugliese, found it “very unlikely” that the police would find fingerprints on the furniture and looked to another source for the illegal substance. “In the police point of view, there are, of course, search and seizure issues, but normally she’s a passenger. He claims it’s hers and cab drivers don’t normally drive around with drugs in their trunk. I mean they could do so, but that is essentially the case against her.”

As her attorney, Pugliese pointed out, “It’s just an allegation, nothing has been proven. She hasn’t gone to trial yet. That is essentially the evidence against her. It doesn’t mean she is guilty. I have been doing criminal defense work for about 30 years. She hasn’t been proven guilty of anything. It’s just an allegation.”

Nicotra’s next court date is October 16.

The next time you get in a taxi in New York state, ask yourself, what would happen if this cab were pulled over? Would I have to prove my innocence of a crime I didn’t commit? And if I had to, could I?

 

 

Niagara Falls Reporter www.niagarafallsreporter.com Oct 02 , 2012