Defending NY Drug Possession Crimes

NY Drug Possession Crimes can be found in Section 220 of the New York Penal Law. New York Drug Crimes can be divided into three types of cases:

1. Possession,

2. Manufacturing, AND

3. Distribution.

Although Marihuana is also a federal controlled substance, the laws relating to it are located in Article 221, which contains Marihuana Offenses.

New York Schedules of Controlled Substances

New York Penal Law Section 220.00 defines a controlled substance as any substance listed in Schedule I, II, III, IV or V in Section 3306 of the New York Public Health Law. Importantly, marihuana is excluded from the New York definition of controlled substance. However, concentrated cannabis is a controlled substance.

New York State Controlled Substances Act divides controlled substances into five different classes. Unlike most states, New York does not follow federal drug schedule from the Controlled Substances Act. Specifically, the five New York drug schedules are:

Schedule I

Controlled Substances under Schedule I include:

  • Opiates,
  • Opium Derivatives,
  • Hallucinogenic Substances,
  • Depressants,
  • Stimulants.

Schedule II

Controlled Substances under Schedule II include:

  • Opium and Opiates,
  • Opium Poppy, Poppy Straw, Concentrate of Poppy Straw,
  • Coca Leaves and Any Salt, Compound, Derivative, or Preparation of Coca Leaves,
  • Opiates
  • Stimulants,
  • Depressants,
  • Hallucinogenic Substances,
  • Immediate precursor to amphetamine or methamphetamine,
  • Anabolic steroids.

Schedule III

Controlled Substances under Schedule III include:

  • Stimulants,
  • Depressants,
  • Nalophene,
  • Narcotic Drug,
  • Synthetic Dronabinol,
  • Chorionic Gonadotropin.

Schedule IV

Controlled Substances under Schedule IV include:

  • Narcotic Drugs,
  • Depressants,
  • Fenfluramine,
  • Stimulants,
  • Tramadol.

Schedule V

Controlled Substances under Schedule V include:

  • Narcotic Drugs with Nonnarcotic Active Medicinal Ingredients,
  • Stimulants Containing Pyrovalerone,
  • Depressants Containing Ezogabine, Lacosamide, Pregabalin.

To accurately determine under which schedule, a specific controlled substance falls, you may want to review the complete list below:

NY Drug Crimes – Possession

There are six degrees of drug possession crimes in New York. Specifically, listed from least serious to most serious:

  1. Seventh Degree Criminal Possession of a Controlled Substance (PL 220.03);
  2. Fifth Degree Criminal Possession of a Controlled Substance (PL 220.06);
  3. Fourth Degree Criminal Possession of a Controlled Substance (PL 220.09);
  4. Third Degree Criminal Possession of a Controlled Substance (PL 220.16);
  5. Second Degree Criminal Possession of a Controlled Substance (PL 220.18);
  6. First Degree Criminal Possession of a Controlled Substance (PL 220.21).

Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03)

Under New York Law, a person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he knowingly and unlawfully possesses a controlled substance.

Importantly, there is no quantity requirement. Nor is there an intent to sell requirement.

NY CPCS 7 Penalties

Criminal Possession of a Controlled Substance in the Seventh Degree is the least serious of all New York drug charges. In fact, CPCS 7 is a Class “A” Misdemeanor. As such, it can be punishable by one year in prison. Oftentimes, simple possession cases are resolved through a non-criminal disposition without any jail time.

Criminal Possession of a Controlled Substance in the Fifth Degree (PL 220.06)

Under Penal Law Section 220.06, a person is guilty of CPCS in the Fifth Degree when he knowingly and unlawfully possesses:

  1. A Controlled Substance with intent to sell it; OR
  2. One or more preparations, compounds, mixtures containing a narcotic preparation and said preparations, compounds, mixtures or substances are of an aggregate weight of 1/2 ounce or more; OR
  3. Phencyclidine, which weighs fifty milligrams or more; OR
  4. One or more preparations, compounds, mixtures or substances containing concentrated cannabis of an aggregate weight of 1/4 ounce or more; OR
  5. Cocaine and said cocaine weighs 500 milligrams or more; OR
  6. Ketamine and said ketamine weighs more than 1,000 milligrams; OR
  7. Ketamine and has previously been convicted of possession or attempted possession of ketamine; OR
  8. One or more preparations, compounds, mixtures or substances containing GHB, and said preparations, compounds, mixtures or substances are of an aggregate weight of 28 grams or more.

CPCS 5 Penalties

Criminal Possession of a Controlled Substance in the Fifth Degree is a Class “D” Felony. The penalties for this charge depend on the individual’s prior criminal history. Specifically:

No Prior Felony Convictions and CPCS in the Fifth Degree

If this charge is the first felony offense, then it is punishable by:

  • A determinate term of 1 to 2.5 years incarceration,
  • One year of post release supervision,
  • Instead of jail time, 5 years probation may be imposed,
  • A jail term of up to 1 year if there are mitigating circumstances.

Individuals convicted of Criminal Possession of a Controlled Substance in the Fifth Degree may be eligible to receive Youthful Offender (“YO”) status. Additionally, they may also eligible to participate in SHOCK.

Prior Non-Violent Felony Conviction and CPCS in the Fifth Degree

If the individual has prior conviction for a non-violent felony, then Criminal Possession in the Fifth Degree is punishable by:

  • A determinate term of 1.5 to 4 years incarceration,
  • One or two years of post release supervision,
  • Instead of jail time, 5 years probation may be imposed,
  • A jail term of up to 1 year if there are mitigating circumstances.

Individuals convicted of CPCS 5 with a prior non-violent felony conviction may be eligible to receive Youthful Offender (“YO”) status. Additionally, they may also eligible to participate in SHOCK.

Prior Violent Felony Conviction and CPCS in the Fifth Degree

If the individual has a prior violent felony conviction (as the term is defined in Criminal Procedure Law Section 70.02), then Criminal Possession in the Fifth Degree is punishable by:

  • A determinate term of 2.5 to 4.5 years incarceration,
  • One or two years of post release supervision,
  • Probation is not available as a sentencing option,
  • Similarly, there is no alternative jail sentence in the event there are mitigating circumstances.

Individuals convicted of CPCS 5 with a prior violent felony conviction are not eligible to receive Youthful Offender (“YO”). However, they qualify for SHOCK.

Criminal Possession of a Controlled Substance in the Fourth Degree (PL 220.09)

Under Penal Law Section 220.09, a person is guilty of CPCS in the Fourth Degree when he knowingly and unlawfully possesses:

  1. A narcotic drug in the aggregate weight of 1/8 ounce or more; OR
  2. Methamphetamine and said substance is of an aggregate weight of 1/2 ounce or more; OR
  3. A narcotic preparation of an aggregate weight of two ounces or more; OR
  4. A stimulant and said stimulant weighs one gram or more; OR
  5. lysergic acid diethylamide and said lysergic acid diethylamide weighs one milligram or more; OR
  6. A hallucinogen weighing more than 25 milligrams; OR
  7. A hallucinogenic substance weighing over one gram; OR
  8. A dangerous depressant weighing ten ounces or more; OR
  9. A depressant weighing two pounds or more; OR
  10. Concentrated cannabis of aggregate weight of one ounce or more; OR
  11. Phencyclidine weighing 250 milligrams or more; OR
  12. Methadone weighing over 360 milligrams; OR
  13. Phencyclidine weighing 50 milligrams or more with intent to sell it and has previously been convicted of an offense from New York Penal Law Article 220; OR
  14. Ketamine weighing 4,000 milligrams or more; OR
  15. GHB in the aggregate weight of 200 grams or more.

CPCS 4 Penalties

Criminal possession of a controlled substance in the fourth degree is a Class “C” felony. Similarly to Criminal Possession in the Fifth Degree, the range of penalties depends on someone’s criminal record.

No Prior Felony Convictions and CPCS in the Fourth Degree

If this charge is the first felony offense, then it is punishable by:

  • A determinate prison term of 1 to 5.5 years incarceration;
  • One or two years of post-release supervision;
  • Instead of jail time, 5 years probation may be imposed.

Individuals convicted of CPCS 4 without any prior felony convictions may be eligible to receive Youthful Offender (“YO”) status. Additionally, they may also eligible to participate in SHOCK.

Prior Non-Violent Felony Conviction and CPCS in the Fourth Degree

If an individual has a prior non-violent felony conviction, CPCS in the Fourth Degree is punishable by:

  • A determinate term of 2 to 8 years;
  • Post Release Supervision of 1.5 to 3 years;
  • There is no alternative jail sentence in the event there are mitigating circumstances.

Unfortunately, individuals convicted of Criminal Possession of a Controlled Substance in New York are not eligible for a Youthful Offender (“YO”) adjudication. However, they are eligible for SHOCK.

Prior Violent Felony Conviction and CPCS in the Fourth Degree

When an individual has a prior conviction for a Violent Felony, New York Criminal Possession of a Controlled Substance in the Fourth Degree is punishable by:

  • A Determinate sentence of 3.5 – 9 years in jail;
  • Post Release Supervision of 1.5 – 3 years;
  • Probation is not an option;
  • There is no alternative for a shorter sentence if there are mitigating circumstances.

There is no Youthful Offender (“YO”) Adjudication or SHOCK eligibility on a Criminal Possession of a Controlled Substance in the Fourth Degree with a prior violent felony conviction.

Criminal Possession of a Controlled Substance in the Third Degree (PL 220.16)

Under New York Penal Law 220.16, a person is guilty of Criminal Possession of a Controlled Substance in the Third Degree when he knowingly and unlawfully possesses:

  1. A narcotic drug with intent to sell it; OR
  2. A stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide, with intent to sell it AND has previously been convicted of an offense or attempted offense in Article 220 of the New York Penal Law (NY Drug Crimes); OR
  3. A stimulant with intent to sell it, which weighs 1 gram or more; OR
  4. Lysergic acid diethylamide (LSD) with intent to sell it, which weighs 1 milligram or more; OR
  5. A hallucinogen with intent to sell it, which weighs 25 milligrams or more; OR
  6. A hallucinogenic substance with intent to sell it, which weighs 1 gram or more; OR
  7. One or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers with intent to sell it, of an aggregate weight of 1/8 ounce or more; OR
  8. A stimulant and said stimulant weighs 5 grams or more; OR
  9. LSD, which weighs five milligrams or more; OR
  10. A hallucinogen, which weighs 125 milligrams or more; OR
  11. A hallucinogenic substance, which weighs five grams or more; OR
  12. One or more preparations, compounds, mixtures or substances containing a narcotic drug and are of an aggregate weight of 1/2 ounce or more; OR
  13. Phencyclidine, which weighs 1,250 milligrams or more.

CPCS 3 Penalties

Criminal Possession of a Controlled Substance in the Third Degree is a Class “B” felony.

No Prior Felony Convictions and CPCS in the Third Degree

For individuals without any prior felony convictions, this charge is punishable by:

  • A determinate term of 1-9 years in prison;
  • Probation is permitted;
  • There is no alternative shorter determinate term in the event of mitigating circumstances.

Both Youthful Offender (“YO”) Status and SHOCK are permitted for Criminal Possession of a Controlled Substance in the Third Degree for individuals without any prior felony convictions.

Prior Non-Violent Felony Conviction and CPCS in the Third Degree

For individuals with prior non-violent felony convictions, CPCS in the Third Degree is punishable by:

  • Determinate Sentence Term of 3.5 to 12 years in prison;
  • Post-release supervision of 1.5 to 3 years;
  • Instead of serving a jail term, individuals can be on lifetime probation.
  • There is no alternative determinate sentence available.

Additionally, neither Youthful Offender (“YO”) nor SHOCK are permitted on Criminal Possession of a Controlled Substance in the Third Degree with a prior conviction for a non-violent felony.

Prior Violent Felony Conviction and CPCS in the Third Degree

For individuals with a prior violent felony conviction, Criminal Possession of a Controlled Substance in the Third Degree is punishable by:

  • A determinate sentence of 6 to 15 years;
  • Post release supervision of 1.5 to 3 years;
  • Probation or an alternative determinate sentence is not permitted;

Neither Youthful Offender (“YO”) nor SHOCK is available for Criminal Possession of Controlled Substance in the Third Degree charges for individuals with prior violent felony convictions.

Criminal Possession of a Controlled Substance in the Second Degree (PL 220.18)

Under New York Penal Law Section 220.18, a person is guilty of Criminal Possession of a Controlled Substance in the Second Degree when he or she knowingly and unlawfully possesses:

  1. One or more preparations, compounds, mixtures or substances containing a narcotic drug in the aggregate weight of 4 ounces or more; OR
  2. One or more preparations, compounds, mixtures or substances containing methamphetamine, which are of an aggregate weight of 2 ounces or more; OR
  3. A stimulant and said stimulant weighs ten grams or more; OR
  4. LSD, which weighs 25 milligrams or more; OR
  5. A hallucinogen, which weighs 625 milligrams or more; OR
  6. A hallucinogenic substance which weighs 25 grams or more; OR
  7. Methadone, which weights 2,880 milligrams or more.

CPCS 2 Penalties

Criminal possession of a controlled substance in the second degree is a class A-II felony. Once again, the penalties differ based on someone’s prior criminal history.

No Prior Felony Convictions and CPCS in the Second Degree

For individuals without any prior felony convictions, Criminal Possession of a Controlled Substance in the Second Degree is punishable by:

  • A determinate term of 1-9 years;
  • Post-release supervision of 1-2 years;
  • In the alternative, individuals can be sentenced to probation;

Both Youthful Offender (“YO”) Adjudication and SHOCK is available on CPCS 2 for individuals without prior felony convictions.

Prior Non-Violent Felony Conviction and CPCS in the Second Degree

For individuals with a prior non-violent felony conviction, CPCS in the Second Degree is punishable by:

  • A determinate sentence of 3.5 to 12 years;
  • Post release supervision 1.5 to 3 years;
  • Lifetime probation, instead of jail time.

Neither Youthful Offender (“YO”) adjudication nor SHOCK applies to Criminal Possession of a Controlled Substance in the Second Degree with a prior non-violent felony conviction.

Prior Violent Felony Conviction and CPCS in the Second Degree

CPCS in the Second Degree for individuals with prior violent felony convictions is punishable by:

  • A determinate sentence of 6 to 15 years;
  • Post release supervision of 1.5 to 3 years;
  • Neither probation nor an alternative definite imprisonment term is available.

Neither Youthful Offender (“YO”) adjudication nor SHOCK applies to Criminal Possession of a Controlled Substance in the Second Degree with a prior violent felony conviction.

Criminal Possession of a Controlled Substance in the First Degree (PL 220.21)

Under New York Penal Law 220.21, a person is guilty of Criminal Possession of a Controlled Substance in the First Degree, when he or she knowingly and unlawfully possesses:

  1. one or more preparations, compounds, mixtures or substances containing a narcotic drug, with aggregate weight of 8 ounces or more; OR
  2. methadone, which weights 5,760 milligrams or more.

CPCS 1 Penalties

Criminal possession of a controlled substance in the first degree is a class A-I felony.

No Prior Felony Convictions and CPCS in the First Degree

Criminal Possession of Controlled Substance in the First Degree, for an individual without a prior felony record is punishable by:

  • Determinate sentence of 8 to 20 years;
  • Post release supervision of 5 years;
  • Probation is not permitted on CPCS 1.

Neither Youthful Offender (“YO”) status nor SHOCK applies to sentences for CPCS in the First Degree for individuals without a felony record.

Prior Non-Violent Felony Conviction and CPCS in the First Degree

Criminal Possession of a Controlled Substance in the First Degree, for individuals with a prior non-violent felony conviction is punishable by:

  • A determinate sentence of 12 to 24 years;
  • Post release supervision of 5 years;
  • There is no alternative determinate sentence.

There is no Youthful Offender (“YO”) Adjudication or Shock on CPCS 1 with a prior conviction for a non-violent offense.

Prior Violent Felony Conviction and CPCS in the First Degree

For individuals with a prior violent felony conviction, CPCS 1 is punishable by:

  • A determinate sentence term of 15 to 30 years in prison;
  • Post release supervision of 5 years;
  • There is no alternative sentence permitted.

Similarly to the above-described CPCS 1, there is no Youthful Offender (“YO”) status or SHOCK eligibility.

Presumptions Applicable to NY Drug Possession Crimes

New York Penal Law Section 220.25 sets forth presumptions that apply to NY Drug Possession cases. Specifically, these presumptions make it easier for the prosecutor to prove the knowledge element in these situations:

  1. Possession of controlled substance in a car with multiple occupants; OR
  2. Presence in a room with narcotic drugs, preparations, marihuana or phencyclidine in open view.

Possession of a Controlled Substance in a Car

Under New York Law, all occupants of a car are presumed to knowingly possess the controlled substances in the car at the time that they are found.

Exceptions to Car Presumption

The CPCS Car Presumption does not apply to:

  • Public Transportation;
  • Driver of a taxi, or a vehicle for hire (i.e. Uber, Lyft) driving a fare;
  • Possession of controlled substances with a valid prescription and in the original container;
  • Controlled substances that are concealed on the body of one of the occupants.
Examples of Car Presumptions for Controlled Substance Offenses

Let’s say the police stop the car with four occupants. The car has oxycodone pills in the backseat. All four occupants are presumed to have knowledge and possession of the pills.

However, if the car is a taxi and the driver is transporting three passengers, the driver cannot be presumed to have knowledge or constructive possession over the pills.

Presence in a Room with Narcotic Drugs, Preparations, Marihuana, or Phencyclidine

The second presumption that applies to New York Drug Possession cases is being in the same room with narcotic drugs, narcotic preparations, marihuana or phencyclidine. However, for this presumption to apply:

  1. The substances must be in open view in a room, AND
  2. The circumstances must demonstrate an intent to unlawfully mix, compound or prepare the controlled substance for sale.
Exceptions to the Presence Presumption

Importantly, this presence presumption does not apply in two situations:

  1. Where an individual has a valid prescription for the controlled substance; OR
  2. Where the drugs are concealed on someone’s body.
Examples of Presence Presumption

Let’s say police execute a search warrant on an apartment and find two occupants inside. The police also find heroin on the living room table along with scales, cut and packaging material. Both individuals can be charged with possession of the heroin on the presence presumption.

However, if the heroin is located on one person’s body, then the other occupant cannot be charged with the heroin possession based on the presence presumption.

Contact an Experienced NY Drug Possession Attorney Today

As discussed above, New York Drug Possession cases carry draconian penalties. Contact an experienced Criminal Possession of a Controlled Substance Attorney today for a free consultation.