Defending New York Drug Distribution Charges

New York’s Drug Charges are found in Article 220 of the New York Penal Code. Generally, New York Drug Charges can be divided into:

  1. Possession,
  2. Distribution, and
  3. Manufacturing.

Although Marihuana is a controlled substance both under federal law and New York Law, Marihuana Offenses are codified in a separate section – Article 221 of the New York Penal Code.

New York Drug Sale and Distribution Charges

There are nine different New York drug distribution charges. Specifically, they are:

  • Fifth Degree Criminal Sale of a Controlled Substance (PL 220.31),
  • Fourth Degree Criminal Sale of a Controlled Substance (PL 220.34),
  • Third Degree Criminal Sale of a Controlled Substance (PL 220.39),
  • Second Degree Criminal Sale of a Controlled Substance (PL 220.41),
  • First Degree Criminal Sale of a Controlled Substance (PL 220.43),
  • Criminal Sale of a Controlled Substance in or near the School Grounds (PL 220.44),
  • Criminal Sale of a Controlled Substance to a Child (PL 220.48),
  • Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist (PL 220.65),
  • Operating as a Major Trafficker (PL 220.77).

Criminal Sale of a Controlled Substance in the Fifth Degree (PL 220.31)

Under New York Penal Law 220.031, a person is guilty of Criminal Sale of a Controlled Substance in the Fifth Degree when he knowingly and unlawfully sells a controlled substance.

Penal Law Section 220.00 defines a “Controlled Substance” as any substance listed in schedule I, II, III, IV or V of Section 3306 of the Public Health Law other than marihuana, but including concentrated cannabis.

Penalties for Criminal Sale of Controlled Substance 5

Criminal Sale of a Controlled Substance in the Fifth Degree is a Class D Felony. The sentencing range on CSCS 5, depends on the individual’s prior criminal history.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance 5

Criminal Sale of Controlled Substance in the Fifth Degree for someone without a prior felony conviction is punishable by 1 to 2.5 years in prison followed by 1 year post release supervision.

Additionally:

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Case may also be diverted to a drug treatment program.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance 5

Criminal Sale of a Controlled Substance in the Fifth Degree for someone with a prior non-violent felony conviction is punishable by 1.5 to 4 years in prison followed by 1 to 2 year of post release supervision.

Additionally,

  • Probation is permitted;
  • If there are mitigating circumstances, an alternative definite sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Diversion of the case to a drug program is permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance 5

Criminal Sale of a Controlled Substance in the Fifth Degree for an individual with a prior violent felony conviction is punishable by 2.5 to 4.5 years in prison followed by 1 year post release supervision.

Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Diversion of a case to drug treatment is not permitted.

Criminal Sale of a Controlled Substance in the Fourth Degree (PL 220.34)

Under New York Penal Law 220.34, a person is guilty of Criminal Sale of a Controlled Substance in the Fourth Degree when he knowingly and unlawfully sells:

  1. A narcotic preparation; OR

  2. A dangerous depressant which weights 10 oz or more, or depressant which weighs two pounds or more; OR

  3. Concentrated cannabis; OR

  4. Phencyclidine weighing 50 milligrams or more; OR

  5. Methadone; OR

  6. Any amount of phencyclidine and a previous conviction for a drug offense until NY Article 220; OR

  6-a. Ketamine weighing 4,000 milligrams or more; OR

  7. A controlled substance in violation CSCS 5 and the sale takes place upon school grounds or on a school bus; OR

  8. A controlled substance in violation of CSCS 5, when such sale takes place upon the grounds of a child day care or educational facility and the Defendant knows that the sale is taking place on such grounds; OR

  9. One or more preparations, compounds, mixtures or substances containing GHB, with an aggregate weight of 28 grams or more.

Penalties for Criminal Sale of Controlled Substance 4

Criminal sale of a controlled substance in the fourth degree is a class C felony. The sentencing options depend on the individual’s prior criminal history.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance 4

Criminal Sale of a Controlled Substance in the Fourth Degree for someone without any prior felonies is punishable by 1 to 5.5 years in prison, followed by 1 to 2 years post release supervision.

Additionally,

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Diversion of the case to drug treatment court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance 4

For individuals with prior non-violent felony convictions, CSCS in the Fourth Degree is punishable by 1.5 to 8 years in prison followed by 1.5 to 3 years post release supervision.

Additionally,

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case into Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance 4

For individuals with prior violent felony convictions, CSCS in the Fourth Degree is punishable by 3.5 to 9 years in prison followed by 1.5 to 3 years Post Release Supervision.

Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted;
    Youthful Offender Adjudication (“YO”) is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Diversion of the case to Drug Treatment is not permitted.

Criminal Sale of a Controlled Substance in the Third Degree (PL 220.39)

Under New York Penal Law 220.39, a person is guilty of Criminal Sale of a Controlled Substance in the Third Degree when he knowingly and unlawfully sells:

  1. A narcotic drug; OR

  2. A stimulant, hallucinogen, hallucinogenic substance, or LSD and has previously been convicted of a drug offense under Article 220 of the New York Penal Law; OR

  3. A stimulant and the stimulant weighs one gram or more; OR

  4. LSD, which weighs one milligram or more; OR

  5. A hallucinogen, which weighs 25 milligrams or more; OR

  6. A hallucinogenic substance which weighs one gram or more; OR

  7. one or more preparations, compounds, mixtures or substances containing methamphetamine, of an aggregate weight of 1/8 ounce or more; OR

  8. Phencyclidine, which weighs 250 milligrams or more; OR

  9. A narcotic preparation to a person less than 21 years old.

Penalties for Criminal Sale of Controlled Substance 3

Criminal sale of a controlled substance in the third degree is a class B felony. The sentencing range depends on the individual’s prior criminal history.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance 3

For individuals without any prior felony convictions, Criminal Sale of a Controlled Substance in the Third Degree is punishable by 1 to 9 years in prison followed by 1 to 2 years Post Release Supervision. Furthermore,

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Judicial Diversion is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance 3

Criminal Sale of a Controlled Substance in the Third Degree and a prior non-violent felony conviction is punishable by 2 to 12 years in prison followed by 1.5 to 3 years post release supervision. Additionally,

  • Probation is permitted;
  • Even if there are mitigating circumstances, an Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is permitted
  • SHOCK is permitted;
  • Judicial Diversion is permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance 3

For individuals with prior violent felony convictions, CSCS 3 is punishable by 6 to 15 years in prison followed by 1.5 to 3 years post release supervision. Additionally,

  • Probation is not permitted;
  • Even if there are mitigating circumstances, an Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is permitted;
  • SHOCK is not permitted;
  • Diversion of the case to Drug Treatment Court is not permitted.

Criminal Sale of a Controlled Substance in the Second Degree (PL 220.41)

Under New York Penal Law 220.41, a person is guilty of Criminal Sale of a Controlled Substance in the Second Degree when he knowingly and unlawfully sells:

  1. A narcotic drug of an aggregate weight of 1/2 ounce or more; OR

  2. Methamphetamine of an aggregate weight of 1/2 ounce or more; OR

  3. a Stimulant and the stimulant weighs 5 grams or more; or

  4. LSD which weighs 5 milligrams or more; OR

  5. A hallucinogen which weighs 125 milligrams or more; OR

  6. A hallucinogenic substance which weighs 5 grams or more; OR

  7. Methadone which weighs 360 milligrams or more.

Penalties for Criminal Sale of Controlled Substance 2

Criminal sale of a controlled substance in the second degree is a class A-II felony. Sentencing depends on the individual’s prior criminal history.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance 2

Without any prior felony convictions, this charge is punishable by 3 to 10 years in prison, followed by 5 years post release supervision.

Additionally,

  • Lifetime Probation is permitted as an alternative sentence;
  • However, an Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion to Drug Treatment Court is not permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance 2

If an individual has a prior non-violent felony conviction, CSCS in the Second Degree is punishable by 6 to 14 years in prison followed by 5 years post release supervision.

Furthermore,

  • Lifetime Probation is permitted as an alternative sentence;
  • An Alternative Definite Sentence is not permitted even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is permitted;
  • Diversion of case to drug treatment court is not permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance 2

If an individual has a prior violent felony conviction, then the Criminal Sale of a Controlled Substance in the Second Degree is punishable by 8 to 17 years in prison followed by 5 years post release supervision.

Furthermore,

  • Lifetime Probation is permitted;
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is permitted;
  • Diversion to Drug treatment court is not permitted.

Criminal Sale of a Controlled Substance in the First Degree (PL 220.43)

Under New York Law 220.42, a person is guilty of Criminal Sale of a Controlled Substance in the First Degree when he knowingly and unlawfully sells:

  1. A narcotic drug of an aggregate weight of 2 ounces or more; OR

  2. Methadone which weighs 2,880 milligrams or more.

Penalties for Criminal Sale of Controlled Substance 1

Criminal sale of a controlled substance in the first degree is a class A-I felony. An individual’s prior criminal history dictates the range of available sentences.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance 1

CSCS in the First Degree without any prior felony convictions is punishable by 8 to 20 years in prison, followed by 5 years of post release supervision. Additionally,

  • Probation is not permitted;
  • Even if there are mitigating circumstances, an Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is not permitted;
  • Diversion of case to drug treatment court is not permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance 1

This charge with a prior conviction for a non-violent felony is punishable by 12 to 24 years in prison, followed by 5 years of post release supervision. Furthermore,

  • Probation is not permitted;
  • Even if there are mitigating An Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is not permitted;
  • Diversion of case to Drug Treatment Court is not permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance 1

With a prior violent felony conviction, CSCS in the First Degree is punishable by 15-30 years in prison followed by 5 years post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is not permitted;
  • Diversion of case to Drug Treatment Court is not permitted.

Section  220.44 Criminal sale of a controlled substance in or near school grounds 

Under New York Law 220.44, A person is guilty of Criminal Sale of a Controlled Substance in or Near School grounds when he knowingly and unlawfully sells:

  1. A controlled substance in violation of New York’s Criminal Sale of a Controlled Substance in the Fourth Degree charge when such sale takes place on school grounds or on a school bus; OR

  2. A controlled substance in violation Criminal Sale of a Controlled Substance in the Third Degree, when such sale takes place upon school grounds or on a school bus; OR

  3. A controlled substance in violation of Criminal Sale of a Controlled Substance in the Fourth degree when such sale takes place upon the grounds of a child day care or educational facility under circumstances showing that defendant knows that he is on such premises; OR

  4. A controlled substance in violation of Criminal Sale of a Controlled Substance in the Third Degree, when such sale takes place upon the grounds of a child day care or educational facility under circumstances showing that defendant knows that he is on such premises.

Penalties for Criminal Sale of Controlled Substance in or near the School Grounds

Criminal sale of a controlled substance in or near school grounds is a class B felony. Similarly to the other drug charges, sentencing depends on someone’s criminal history.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance in or Near the School Grounds

Without a prior felony conviction, this charge is punishable by 2 to 9 years (as opposed to 1 to 9 if the same was not on school grounds). Then, it will be followed by 1 to 2 years of post release supervision.

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Diversion of the case to drug treatment court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance in or Near the School Grounds

If an individual has a prior non-violent felony conviction, the Criminal Sale of a Controlled Substance in or Near the School Grounds is punishable by 2 to 12 years in prison, followed by 1.5 to 3 years post release supervision.

  • Probation is permitted;
  • However, an Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case to Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance in or Near the School Grounds

With a prior violent felony conviction, CSCS in or near the School Grounds is punishable by 6 to 15 years in prison followed by 1.5 to 3 years post release supervision. Furthermore,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is permitted;
  • SHOCK is not permitted;
  • Judicial Diversion to Drug Treatment Court is not permitted.

Criminal Sale of a Controlled Substance to a Child (PL 220.48)

Under New York Penal Law 22048, a person is guilty of Criminal Sale of a Controlled Substance to a Child when:

  1. Being over twenty-one years old;
  2. He or she knowingly and unlawfully sells a controlled substance in violation New York Penal Law’s Criminal Sale of a Controlled Substance in the Third or Fourth Degree;
  3. To a person less than seventeen years old.

Penalties for Criminal Sale of a Controlled Substance to a Child

Criminal sale of a controlled substance to a child is a class B felony. Once again, sentencing options depend on someone’s prior criminal history.

No Prior Felony Convictions and Criminal Sale of a Controlled Substance to a Child

Without any prior felony convictions, Criminal Sale of a Controlled Substance to a Child is punishable by 2 to 9 years in prison, followed by 1 to 2 years post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is not permitted, even with mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Judicial Diversion to Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Controlled Substance to a Child

With a prior non-violent felony conviction, Criminal Sale of a Controlled Substance to a Child is punishable by 2 to 12 years in prison, followed by 1.5 to 3 years post release supervision. Furthermore,

  • Probation is permitted;
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Diversion of case to Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of a Controlled Substance

With a prior violent felony conviction, Criminal Sale of a Controlled Substance is punishable by 6 to 15 years in prison followed by 1.5 to 3 years post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is permitted;
  • SHOCK is not permitted;
  • Diversion of case to Drug Treatment Court is not permitted.

Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist (PL 220.65)

Under New York Penal Law Section 220.65, a person is guilty of Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist when being a Practitioner:

  1. Knowingly and unlawfully sells a prescription for a controlled substance, when done other than in good faith, OR
  2. While purporting to act within the scope of the power, authority and privileges of his or her license, knowingly and unlawfully sells a controlled substance.

Penalties for Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist

Criminal sale of a prescription for a controlled substance or of a controlled substance by a practitioner or pharmacist is a class C felony. Sentencing depends on someone’s prior criminal history.

No Prior Felony Convictions and Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist

This charge, with no prior felony convictions is punishable by 1 to 5.5 years in prison, followed by 1 to 2 years post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of case to Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist

With a prior non-violent felony conviction, this charge is punishable by 1.5 to 8 years in prison, followed by 1.5 to 3 years post release supervision.

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted when there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion to Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist

With a prior violent felony, Criminal Sale of a Prescription for a Controlled Substance or of a Controlled Substance by a Practitioner or Pharmacist is punishable by 3.5 to 9 years in prison, followed by 1.5 to 3 years post release supervision. Furthermore,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Diversion to Drug Treatment Court is not permitted.

Operating as a Major Trafficker (PL 220.77)

Under New York Law 220.77, there are three different ways a person can be charged with Operating as a Major Trafficker:

1. Major Trafficker as a Director (PL 220.77(1))

This charge has the following elements:

  1. Person acts as a director of a controlled substance organization during a period of 12 months or less,
  2. During which time the organization sells one or more controlled substances,
  3. Proceeds collected or due from the sale or sales have a total aggregate value of $75,000.

2. Major Trafficker as a Profiteer and a Drug Seller (PL 220.77(2))

Under New York Penal Law 220.77(2), the following elements are required:

  1. As a profiteer,
  2. Knowingly and unlawfully selling,
  3. On one or more occasions within six months or less,
  4. A narcotic drug,
  5. The proceeds collected or due from such sale(s) have an aggregate value of $75,000.

Major Trafficker as a Profiteer and a Drug Possessor Seller (PL 220.77(3))

New York Penal Law 220.77(3), has the following elements:

  1. As a profiteer,
  2. Knowingly and unlawfully possessing,
  3. On one or more occasions within six months or less,
  4. A narcotic drug with intent to sell,
  5. Such narcotic drugs have a total aggregate value of $75,000 more.

Penalties for Operating as a Major Trafficker

Operating as a major trafficker is a class A-I felony. Sentencing depends on whether the individual has a prior felony conviction and whether that conviction is violent or non-violent.

No Prior Felony Convictions and Operating as a Major Trafficker

Operating as a Major Trafficker, without a prior felony conviction is punishable by 8 to 20 years in prison. This will be followed by 5 years post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is not permitted;
  • Judicial Diversion into Drug Treatment Court is not permitted.
Prior Non-Violent Felony Conviction and Operating as a Major Trafficker

If an individual has a prior non-violent felony conviction, then Operating as a Major Trafficker in violation Penal Law 220.77 is punishable by 12 to 24 years in prison, followed by 5 years post release supervision. Furthermore,

  • Probation is not permitted
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is not permitted;
  • Judicial Diversion into a Drug Treatment Court is not permitted.
Prior Violent Felony Conviction and Operating as a Major Trafficker

If an individual has a prior violent felony conviction, then the New York Charge of Operating as a Major Trafficker is punishable by 15 to 30 years in prison, followed by 5 years post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • SHOCK is not permitted;
  • Diversion into Drug Treatment Court is not permitted.

Contact a New York Drug Distribution Charges Attorney Today

Most of New York Drug Distribution charges have a high mandatory minimum term of incarceration. It is essential that you have an experienced New York Drug Distribution Charges Attorney by your side. Contact us today for a free consultation.