New York Criminal Sale of a Controlled Substance Attorney
Sale of a substance or compound listed on the state’s Controlled Substance Schedules is a felony, although the classification of the crime and the possible penalty varies with the specifics of the case. Though the crime is commonly referred to as “drug dealing” or “selling drugs” or “distribution of a controlled substance,” New York law refers to all degrees as Criminal Sale of a Controlled Substance.
Thanks to changes to New York drug laws in 2009, lower-level drug crimes (even felonies) do not carry the excessive minimum sentences that had been in place for decades. Now, a skilled criminal defense attorney can often argue for an alternative sentence, sometimes avoiding jail time altogether or significantly diminishing the sentence.
In addition, felony narcotics cases require Grand Jury indictment to proceed. In order to indict a person for a felony narcotics offense, the prosecution will have to prove that the substance in question is a controlled substance through laboratory testing and submission of a report to the Grand Jury.
Criminal Sale of a Controlled Substance in the Fifth Degree
Generally, the quantity and type of drug sold determine the degree in which the crime is charged. However, Criminal Sale of a Controlled Substance in the Fifth Degree, Penal Law Section 220.31, requires only that a person “knowingly and unlawfully sells a controlled substance.”
Under this section, the sale of any quantity of any substance listed on any of the 5 schedules in the Public Health Law is a class D felony. That means that the sale of a single OxyContin pill or the smallest amount of Heroin or Cocaine could mean a prison sentence of up to 2.5 years for a first-time felony offender, with an additional year of post-release supervision.
New York Controlled Substance Schedules
The Controlled Substance Schedules include a very large number of substances and compounds, not all of which are included here. However, the partial list below provides a sampling of the type of drugs falling within each category.
Schedule I includes:
- Heroin
- MDMA (3,4-methylenedioxymethamphetamine)
- PCP (phencyclidine)
- Psilocybin (mushrooms)
Schedule II includes:
- Cocaine
- OxyContin (oxycodone)
- LSD (lysergic acid diethylamide)
- Ritalin (methylphenidate)
- Methamphetamine
- Precursors to methamphetamine or phencyclidine
- Anabolic steroids
- Hydrocodone
- Raw opium and its extracts
Schedule III includes:
- Ketamine
- Concentrated cannabis (delta-9 tetrahydrocannabinol)
Schedule IV includes:
- Xanax (alprazolam)
- Ativan (lorazepam)
- Halcion (triazolam)
- Ambien (zolpidem)
Criminal Sale of a Controlled Substance in the Fourth Degree
Criminal Sale of a Controlled Substance in the Fourth Degree, Penal Law Section 220.34, is charged when the defendant is accused of selling:
- Controlled substances on school grounds;
- Narcotic preparations;
- Concentrated cannabis;
- Methadone;
- Phencyclidine
- Weighing 50 milligrams or more; or
- Of any weight if the defendant has a prior controlled substance offense conviction; or
- Ketamine of 4,000 milligrams or more
Criminal Sale of a Controlled Substance in the Fourth Degree is a class C felony. If a person has no prior felony convictions, that means a maximum prison sentence of 5.5 years, with up to 2 years of post-release supervision. However, the prosecution may agree to or the court may order alternative sentences, much like those available with regard to the Fifth Degree crime.
Criminal Sale of a Controlled Substance in the Third Degree
Criminal Sale of a Controlled Substance in the Third Degree, Penal Law Section 220.39, is charged when a person is accused of selling:
- Narcotic drugs;
- Narcotic preparations to a person under 21 years of age;
- Hallucinogens
- Weighing 25 milligrams or greater; or
- Of any weight, if the defendant has a prior controlled substance offense conviction
- Hallucinogenic substances
- Weighing 1 gram or more; or
- Of any weight, if the defendant has a prior controlled substance offense conviction
- Lysergic acid diethylamide
- Weighing 1 milligram or more; or
- Of any weight, if the defendant has a prior controlled substance offense conviction
- Phencyclidine of 250 milligrams or more
- Methamphetamine of 1/8 ounce or more
Criminal Possession of a Controlled Substance in the Third Degree is a class B felony, carrying a maximum sentence of up to 9 years in prison, provided there are no prior felony convictions, with an additional 2 years of post-release supervision.
Even at this serious felony level, alternative sentencing options may be available. Learn more.
Criminal Sale of a Controlled Substance in the Second Degree
Criminal Sale of a Controlled Substance in the Second Degree, Penal Law Section 220.41, is charged based on the weight of the controlled substance alleged to have been sold. This class A-II felony will be charged when the defendant is accused of selling:
- Narcotic drugs of ½ ounce or more;
- Hallucinogens of 125 milligrams or more;
- Hallucinogenic substances of 5 grams or more;
- Methamphetamine of ½ ounce or more;
- Lysergic acid diethylamide of 5 milligrams or more; or
- Methadone of 360 milligrams or more
Criminal Sale of a Controlled Substance in the Second Degree carries a possible penalty of 10 years in prison, for a first-time felony offender, with a minimum sentence of 3 years with 5 years of post-release supervision. Alternative sentencing options are more limited than they are for the lesser degrees, but it is sometimes possible to negotiate for lifetime probation, the SHOCK program and Comprehensive Alcohol and Substance Abuse Treatment. At this level, judicial diversion is not an option.
Criminal Sale of a Controlled Substance in the First Degree
Criminal Sale of a Controlled Substance in the First Degree, Penal Law Section 220.43, is charged in only two circumstances:
- When the defendant is accused of selling narcotic drugs of 2 ounces or more; and
- When the defendant is accused of selling methadone of 2,880 milligrams or more
Criminal Sale of a Controlled Substance in the First Degree is a class A-I felony, carrying a maximum prison sentence of 20 years and a minimum of 8 years, with no prior felony convictions, with a 5-year period of post-release supervision.
