Drug use is a complicated and challenging legal area.  There are some drugs that are legal and some that are controlled substances.  Not all addictive drugs are illegal, but there may be ramifications regardless.  New York law criminalizes the use of certain drugs under certain circumstances.

There are separate laws related to drug possession and sale, which may get more media attention than drug use crimes.  Anyone, regardless of specific situation or profession, may be charged with a drug use crime.

Examples

Here are some examples of what actions could lead to charges of one of the New York drug use crimes being filed:

• After oral surgery, a woman takes prescription opioids.  While this is a controlled substance, there is no risk of criminal charges.  However, she becomes addicted and turns to heroin because it is cheaper.  She convinces her husband to inject the heroin for her.  Her husband may be charged with the crime of injecting a narcotic drug.
• A college student finds keeping up with the coursework during his first semester to be extremely difficult.  He decides to start taking stimulants.  Instead of purchasing pills to take, he decides he can make his own. He has powdered stimulant, scales, and gelatin capsules in his dorm room.  He could be charged with criminally using drug paraphernalia.
• A man who took illegal opiates goes for a walk through his neighborhood.  He is stumbling everywhere, including onto the street causing cars to swerve dangerously.  He could face charges for appearing in public under the influence of narcotics.

The Legal Definitions of the Drug Use Crimes in New York 

New York Penal Law sets out a number of crimes that are related to the possession, distribution, and use of controlled substances and other drugs.  Three of these drug crimes include:

1.     Criminal injection of a narcotic drug
2.     Criminally using drug paraphernalia
3.     Appearance in public under the influence of narcotics or a drug other than alcohol

Each of these three crimes is different drug use crimes that could be charged.  New York Penal Law sets out the elements of each of these crimes.  To better understand the crimes and how they relate to one another, let’s take a closer look at the elements that must be proven in order to reach a conviction on each crime.

For each of the crimes, there is an element for a narcotic drug.  New York Penal Law defines a narcotic drug as a subset of the list of controlled substances. Based on this definition, a narcotic drug includes a variety of opium and its derivatives, opiates, substances that mimic these, and related salts, compounds, and derivatives.

Criminal Injection of a Narcotic Drug

The elements of criminal injection of a narcotic drug are:

1.     Knowledge of possession
2.     Unlawful possession
3.     A narcotic drug
4.     Intent
5.     Injection into another person
6.     Consent of the other person

This crime requires the participation of two people: the person doing the injecting and the person that is receiving the injection.  Both individuals need to know that there is a narcotic in the syringe.  The injector needs to intend to inject the other person, and that person should consent to receive the injection.  If the person doesn’t consent, a crime of assault will apply.

Criminally Using Drug Paraphernalia

The elements of criminally using drug paraphernalia are:

1.     Knowing possession or sale
2.     Chemicals, materials, or tools
3.     Purpose in the possession or sale

The first conviction for this crime is charged in the second degree, but a subsequent conviction would be for first-degree criminal use of drug paraphernalia. The chemicals, tools, or supplies element of this crime includes three categories of things that, if possessed, would satisfy this element.

The chemicals are specifically any that have been adapted for the purpose of diluting or adulterating narcotics or stimulants.  The materials are ones that would be used to package an amount of a drug for individual use, such as a vial or capsule.  The tools are ones that would be used to measure drugs, such as a scale.

In possessing or selling any of these items, the person needs to show intent or know another person intends to use the items for manufacturing, packaging or dispensing drugs illegally.  There is no requirement that the person being charged have possession of an actual narcotic drug or stimulant, only the listed paraphernalia.

Public Influence of Narcotics or a Drug Other than Alcohol

The elements of the crime of appearing in public under the influence of narcotics are:

1.     Public place
2.     Under the influence of a drug other than alcohol
3.     Impact on other people or property

This crime requires that a person who under the influence a drug either “annoys” other people, or in some way endangers people or property.  Simply being out in a public place after having taken a drug is insufficient.

Related Offenses

There are a variety of drug-related offenses under New York Penal Law.  Many of these related offenses focus on other elements of drugs in society, specifically possession, manufacture, and sale of drugs.  There are also additional crimes with generally higher penalties when a person commits certain crimes and involves a child.

These related offenses all concern how people attempt to influence witnesses.  With respect to an underlying criminal proceeding, a person may be charged with one or more of these offenses related to witnesses depending on his or her alleged actions.

• Criminal Possession

New York Penal Law on controlled substances starts with criminal possession of a controlled substance in the seventh degree. The elements of this crime are knowledge of possession, unlawful possession, and a controlled substance.  Higher degrees of criminal possession may be charged when there is an intent to sell, certain amounts of certain drugs, and/or prior convictions.

This crime also provides an exception if there is only a residual amount on a hypodermic needle that is through the state’s safe needle exchange program, or if the discovery of the controlled substance was only because of a person seeking emergency care for himself or someone else.

• Criminal Sale

A criminal sale of a controlled substance in the fifth degree occurs when there is a knowing and unlawful sale, similar to the possession crime but with sale instead of possession occurring.  Higher degrees of charges may be filed where there are specific substances and/or quantities sold or if the sale occurs on the grounds of a school or childcare facility.

Essential and Impactful Cases on Criminal Drug Use in New York 

The key court cases help provide additional details around the elements of one or more of the drug use crimes.  The relevant cases are discussed under each topic below.

1. Circumstantial Evidence

The case of People v. Czarnowski involved the case of a pharmacy intern charged with a controlled substance possession crime.  After conviction, the defendant argued during his appeal that the prosecution had failed to meet its burden because it never produced the actual controlled substance or test results proving that it was a controlled substance at trial.

The court ruled that circumstantial evidence allowing the inference that the substance was a controlled substance is sufficient.

2. Knowing Possession

There is a general statutory presumption that if a narcotic is found on a person, in his vehicle, or on his premises that is not a public place. This presumption has been further confirmed in some cases.  First, People v. Reisman held that if a person has a narcotics in his possession (body, vehicle, or premises), then it is fair to infer that he knows what it is that he has.

People v. Green elaborated on this, noting that because of the large amount of money involved in the narcotics trade, it is unlikely that a person would take possession of a substance without knowing what it was.  However, this presumption is not ironclad and does not extend to proving used without additional evidence according to People v. Jones.

3. Public Place

The crime of being under the influence of a drug needs to be in a public place, which has been evaluated in a number of court cases.  People v. Soule captures the general distinction that marks a public place.  It does not have to be somewhere that is, in fact, public, such as a public sidewalk, but it is not a private place like inside one’s home.

A public place is somewhere that is accessible to the public and visited by many people.  Also, People v. Lane held that if a person is moved involuntarily from a private place to a public place, such as to a police station, the latter location does not satisfy this element.

Whether or not a vehicle is considered a public place has been a category of court cases on this matter.  Generally, it depends on the location of the vehicle at the time of the incident.  A person in a vehicle on a public highway is in a public place, according to a 1927 opinion from the Attorney General.

Detection, Investigation, and Prosecution

• Detection 

Local law enforcement may detect and investigate possible charges of criminal drug use.  The State Police have a Bureau of Criminal Investigation would also be involved in the investigation of any narcotics charges.  Uniformed troopers who become aware of these types of crimes would refer them to BCI for further investigation.

Charges would be referred to the appropriate prosecutor, such as the local district attorney’s office, to prosecute the cases.  However, narcotics are generally a high priority area for law enforcement and prosecutors.  There is a New York Division that works with the U.S. Drug Enforcement Administration.  In addition, there are a number of targeted divisions in New York that detect, investigate, and prosecute these crimes.

• Investigation 

The Department of Health has a Bureau of Narcotic Enforcement, which focuses on prescription controlled substances that are illegally used and trafficked.  The Bureau implements safety mechanisms such as secure prescribing and licensing of entities involved in legal prescription narcotics.  The Bureau also works to detect illegal activity, such as drug diversion.  Work is done in coordination with the appropriate law enforcement agencies.

• Prosecution 

Prosecutors also have special divisions focused on narcotics.  For example, New York City has an Office of the Special Narcotics Prosecutor.  This office has jurisdiction citywide, not specific to any borough.  In addition to local and state law enforcement, federal entities like the U.S. Drug Enforcement Administration and the U.S. Postal Service may refer cases to the SNP.

Statutory Penalties for Criminal Drug Use in New York 

The statutory penalties in New York for criminal drug use may include fines and imprisonment.  The specific penalties depend on the crime.  The possible statutory penalties are as follows:

• Criminal injection of a narcotic drug is a class E felony, which carries a prison sentence of up to four years and a fine of up to $5000.
• Criminally using drug paraphernalia in the second degree is a class A misdemeanor, which carries a prison sentence of up to one year and a fine of up to $1000.
• Criminally using drug paraphernalia in the first degree is a class D felony, which carries a prison sentence of up to seven years and a fine of up to $5000.
• Appearance in public under the influence of narcotics or a drug other than alcohol is a violation, which carries a prison sentence of up to 15 days and a fine of up to $250.

These statutory penalties are just what are faced for drug use crimes.  There are additional prison sentences and fines that are possible for each instance of possession or sale

Additional Consequences of a Criminal Drug Use Conviction 

There is a lot of stigma around the use of drugs, particularly narcotics.  With any level of conviction, even if the penalty is minor, there is a history of drug use that could follow you.  This damage to your reputation could lead to employers, clients, or even loved ones believing that you are actively on drugs.

If you go to prison, you will also lose time with loved ones that could create further distance or strain on that relationship.  Even if they are supportive of you, time apart of any length can be painful.  The stress of the process of being investigated, charged, and prosecuted will be exacerbated by any time you have to spend imprisoned.

Moreover, any criminal charges, especially a drug use charge, can be costly.  The fines themselves may not be prohibitive, but you will lose income in the time you spend imprisoned and time spent defending yourself.  The lasting impact to your reputation may also impede your ability to earn money.  You may also need to expend additional funds to seek mandatory rehabilitation or show, through drug tests, that you are in fact clean.

Legal Defenses to Drug Use Crimes 

There are a number of possible defenses to drug use charges.  There is one statutory safe harbor, which can be known as a “Good Samaritan” provision.  Under this safe harbor, a person cannot be charged with one of the drug use crimes (other than selling drugs), if he or she seeks medical attention in good faith for a possible overdose or other life-threatening emergencies.

This applies if the person seeks it for himself or herself, or for another person. If such circumstances led to the discovery of the drug use underlying these charges, there is a possible affirmative defense under this statute.

• According to People v. Taylor, it is important that the efforts to seek emergency care be the focus of one’s actions.  If a person tries first to destroy evidence, this would not be “good faith” seeking medical care.

A defense strategy relying on the Good Samaritan safe harbor would need to ensure that it is clear that there appeared to be an overdose or emergency and medical care was sought in good faith (as opposed to a way to get out of trouble).

• Other legal defenses could focus on rebutting the presumptions made.  While the case of People v. Czarnowski above explained that circumstantial evidence could be used for inference to meet the elements of the crime, a defense attorney can also argue an alternative interpretation of the same circumstances.

In addition, evidence can be submitted to show that there should not be such a presumption.  For example, if drug paraphernalia was found in a dorm room, but there are two people living there, a defense strategy could be trying to show that the paraphernalia belonged to the other person.

• Similarly, for the crime of injecting a narcotic, a defendant could attempt to show that he did not have knowledge of what was in a syringe.  For example, if a person was under the impression that someone had injectable medication like insulin, it could be possible that was being injected.  If knowledge or intent is being presumed or inferred, a robust defense strategy will work to raise doubts about the prosecution’s inferences.

Being in public under the influence of a drug would need to be defended by arguing that a location was not a public place.  As the cases have shown, even where a place may be open to the public like the country road in People v. Monfette, it could be considered private under certain circumstances.  Similarly, a private vehicle may be considered public if it is in a public place.  In presenting a defense, the circumstances of the specific location could be presented and argued as more private and not under the purview of this criminal statute.

Let Us Help You 

Drug charges of any magnitude are a stressful ordeal.  We want to help you navigate these challenges.  There may be opportunities to negotiate lesser charges, and an attorney can help you identify these opportunities and evaluate the best course of action for you.  A plea deal can be your best bet, or it can be a bad deal.

An experienced defense attorney can help reduce your stress by offering a legal team to work on your case.  Instead of fighting the charges on your own, you will have a whole team to assist you.  A skilled legal team can research options for your defense and determine the best options for you.

A lawyer can communicate with law enforcement for you, strategize the best defense, and vigorously defend you if you have to go to court.  We have criminal law offices in your area, and we are ready to help you.  Do not hesitate to call today.

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