New York Drug Possession Attorney | New York Drug Sale Attorney
Possession of Controlled Substances laws in New York cover a wide range of drugs, from narcotics and hallucinogens to concentrated marijuana. Not long ago, even relatively minor drug crimes carried harsh mandatory penalties. Many drug crimes carried a mandatory sentence of 15 years to life—the same as Murder in the Second Degree.
Fortunately, drug sentencing reforms enacted in 2009 vested courts with much more leeway, clearing the way for skilled criminal defense attorneys to negotiate resolutions that would not have been possible less than a decade ago.
Scheduling of Controlled Substances under New York Law
The Controlled Substance Schedules in the state Public Health Law 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)
Misdemeanor Criminal Possession of a Controlled Substance in New York
Criminal Possession of a Controlled Substance in the Seventh Degree
Criminal Possession of Controlled Substances in the Seventh Degree, Penal Law Section 220.03, is the only misdemeanor narcotics possession charge. To win a conviction under this section, a prosecutor need only prove that the defendant knowingly and unlawfully possessed a controlled substance.
Under this section, there is no weight requirement. Mere possession of any weight of any controlled substance is sufficient to support a class A misdemeanor conviction. While a conviction carries the possibility of up to 1 year in jail or 2 or 3 years of probation, there are many other possible resolutions. In fact, a person with little or no criminal history may be eligible for an Adjournment in Contemplation of Dismissal (ACD) or a plea to Disorderly Conduct.
Alternative Resolutions for Misdemeanor Drug Possession
ACD in New York: An ACD, if the defendant fulfills all requirements, means that the case will be dismissed and sealed after 6 months.
Disorderly Conduct: Disorderly Conduct is a non-criminal offense and in New York it is therefore not a criminal conviction. In some cases, the prosecution will allow a person charged with a plea to this violation, which eventually seals. If either an ACD or a plea bargain to Disorderly Conduct is offered to a prosecutor, the defendant may be required to complete a 1-day treatment session and/or to perform community service.
Felony Criminal Possession of a Controlled Substance in New York
Note that there is no Sixth Degree crime of Criminal Possession of a Controlled Substance. The Seventh Degree crime is a misdemeanor and the felony crimes are First through Fifth Degree.
Criminal Possession of a Controlled Substance in the Fifth Degree
Criminal Possession of a Controlled Substance in the Fifth Degree, Penal Law Section 220.06, is charged based on the weight of the substance, except in limited circumstances involving the intent to sell. A person will be charged with Criminal Possession of a Controlled Substances in the Fifth Degree if he is accused of possessing:
- Cocaine of 500 milligrams or more;
- Narcotic preparations of ½ ounce or more;
- Phencyclidine of 50 milligrams or more;
- Concentrated cannabis of ¼ ounce or more; or
- Ketamine of more than 1,000 milligrams
The Fifth Degree crime is a class D felony, carrying a maximum possible prison sentence of 2.5 years with an additional year of post-release supervision for a first-time felony offender. However, there are many other possible sentencing options, including:
- Judicial diversion;
- 6 months in SHOCK, a military-style boot camp;
- Comprehensive Alcohol and Substance Abuse Treatment in a correctional annex;
- A split sentence of up to 6 months in jail and:
- 5 years on probation; or
- A conditional discharge;
- Probation of 1 year or 5 years;
- A straight 3-year conditional discharge; or
- An unconditional discharge
Criminal Possession of a Controlled Substance in the Fourth Degree
Criminal Possession of a Controlled Substance in the Fourth Degree, Penal Law Section 220.09, is charged when the defendant is accused of possessing:
- Narcotic drugs of 1/8 ounce (3.54 grams) or more;
- Narcotic preparations of 2 ounces or more;
- Methamphetamine of ½ ounce or more;
- Phencyclidine of 250 milligrams or more;
- Concentrated cannabis of 1 ounce or more;
- Lysergic acid diethylamide of 1 milligram or more;
- Ketamine of 4,000 milligrams or more;
- Methadone of 350 milligrams or more;
- Hallucinogens of 25 milligrams or more; and
- Hallucinogenic substances of 1 gram or more
This crime is also charged when a person is accused of possession of at least 50 milligrams of phencyclidine and has a previous conviction for any controlled substance offense.
The Fourth Degree crime is a class C felony, punishable for a first-time felony offender by up to 5.5 years in prison and up to 2 years of post-release supervision. However, the possibilities for alternative sentencing are similar to those associated with the Fifth Degree crime, including the possibility of judicial diversion.
Give yourself the best chance at a favorable resolution to drug possession charges. Talk with an experienced criminal defense lawyer.
Criminal Possession of a Controlled Substance in the Third Degree
Criminal Possession of a Controlled Substance in the Third Degree, Penal Law Section 220.16, is charged when a person is alleged to possess:
- Narcotic drug of any weight with the intent to sell;
- Hallucinogenic substance of at least 1 gram with intent to sell;
- Hallucinogen of at least 25 milligrams with intent to sell;
- Any hallucinogen or hallucinogenic substance with an intent to sell if the accused has a previous conviction for any controlled substance offense;
- Narcotic drugs of 1/2 ounce (14.17 grams) or more;
- Phencyclidine of 1,250 milligrams or more;
- Lysergic acid diethylamide of 5 milligrams or more;
- Hallucinogens of 125 milligrams or more; or
- Hallucinogenic substances of 5 grams or more
Criminal Possession of a Controlled Substance in the Third Degree is a class B felony, carrying a maximum prison sentence of 9 years with up to 2 years of post-release supervision if a person has no prior felony convictions. Even at this serious level, most of the alternative sentencing options described above remain possible for some defendants.
When you’re facing serious drug charges, a skilled criminal defense attorney can be your best resource. Take the first step toward protecting yourself and your future right now.
Criminal Possession of a Controlled Substance in the Second Degree
The Second Degree crime, Penal Law Section 220.18, is charged based solely on weight, when a person is accused of possessing:
- Narcotic drugs of 4 ounces (113. 40 grams) or more;
- Methamphetamine of 2 ounces (56.70 grams) or more;
- Lysergic acid diethylamide of 25 milligrams or more;
- Hallucinogens of 625 milligrams or more;
- Hallucinogenic substances of 25 grams or more; or
- Methadone of 2,880 milligrams or more
Criminal Possession of a Controlled Substance in the Second Degree is a class A-II felony. The maximum sentence if a person has no prior felony convictions is 10 years in prison, with a minimum of 3 years coupled with 5 years of post-release supervision. At this level, many of the alternative sentencing options discussed above are unavailable. However, a skilled defense attorney may still be able to negotiate for:
- Lifetime probation and the SHOCK program; or
- Comprehensive Alcohol and Substance Abuse Treatment
Judicial diversion is not available in connection with a Second Degree charge.
Criminal Possession of a Controlled Substance in the First Degree
Criminal Possession of a Controlled Substance in the First Degree, Penal Law Section 220.21, is charged under only these limited circumstances:
- When a person is accused of possessing narcotic drugs of 8 ounces (226.8 grams) or more;
- When a person is accused of possessing methadone of 5,760 milligrams or more; or
- When a person is accused of possessing ketamine of 4,000 milligrams or more
Criminal Possession of a Controlled Substance in the First Degree is a class A-I felony. The maximum prison sentence if a person has no prior felony convictions is 20 years, and the minimum 8 years with 5 years of post-release supervision. The only alternative sentence is Comprehensive Alcohol and Substance Abuse Treatment. Judicial diversion is not among the alternative sentences.
Prosecution of Drug Possession Crimes in New York
Charging and meeting the burden of proof in a possession of controlled substances case in New York commonly involves some steps that provide an opportunity for the defense to attack the case, possibly resulting in non-prosecution, dismissal, reduction in charges or the offer of a favorable plea bargain.
The Grand Jury Indictment
Felony crimes must be presented to a Grand Jury in New York. Although the deck is stacked in favor of the prosecution at this stage and the old adage says that even a mediocre prosecutor could indict a ham sandwich, the Grand Jury stage offers some opportunities for the defense. In a drug case, a laboratory analysis establishes that the substance in question is actually a controlled substance as charged is required to proceed to the Grand Jury.
Challenging a Search in Drug Possession Cases
When police find a person in possession of a controlled substance, that discovery is typically the result of a search. Evidence that is discovered as the result of an unlawful search may often be suppressed, meaning that the prosecution cannot introduce that evidence at trial. This frequently leads to dismissal of the charges.
When the substance was discovered as the result of an arrest, the defendant is entitled to a pre-trial hearing known as the Mapp hearing. At the hearing, the defense will have the opportunity to attack the constitutionality of a search and, in the process, obtain valuable information from prosecution witnesses.
Proving Drug Possession Beyond a Reasonable Doubt
The prosecution has the burden to prove each element of a crime beyond a reasonable doubt. In a drug case, one element the prosecution will have to prove is that the substance is in fact a scheduled controlled substance. Although no testing is required for a misdemeanor case to be filed and a certified laboratory report will suffice for the Grand Jury, at trial the chemist who conducted the analysis will generally be required to testify and will be subject to cross-examination by the defense attorney.
