A person may find themselves at risk of prosecution for Possession of a Controlled Substance in New York when they knowingly and unlawfully possess a controlled substance. The type and amount of the substance possessed, and your intentions with regard to selling it affect the sentence that may be imposed.

Charges for the Possession of a Controlled Substance in New York can range from a misdemeanor to a felony and sentences can range from probation to 24 years in prison and a $50,000 fine. Because sentences can be so severe for Possession of a Controlled Substance in New York, it is important to consult a skilled criminal defense attorney. 

The Legal Definition of Possession of a Controlled Substance in New York 

N.Y. Penal Law § 220.03-25 sets out the legal definition of Possession of a Controlled Substance in New York. Possession of a Controlled Substance in New York can be either a misdemeanor or a felony under state criminal laws.

There are several “factors” of Possession of a Controlled Substance in New York, which are things that the prosecutor must prove for you to be found guilty of different degrees of this offense. Basically, for a defendant to be convicted in a criminal trial for Possession of a Controlled Substance in New York under N.Y. Penal Law § 220.03-25, the following must be considered:

1. The type of controlled substance
2. The amount of the controlled substance
3. Your intentions with the controlled substance

Let’s delve a bit more deeply into these elements of the crime of assault to understand their meaning better. 

Element #1: the type of controlled substance

• The definition of the type of controlled substance is the nature and classification of the substance on the list of controlled substances.
• While general possession of any controlled substance is charged as criminal possession of a controlled substance in the seventh-degree possession of certain drugs such as hallucinogenic substances may be charged under criminal possession of a controlled substance in the third degree. This elevates the charge from a class A misdemeanor to a class B felony.
• In People v. Jimenez, the court ruled that possession of cocaine could be charged as criminal possession of a controlled substance in the second degree.
• Consider an example in which William is arrested for possession of a controlled substance. If the controlled substance with which he was arrested were cocaine, then he would likely be charged with a more severe crime than if it were marijuana. 

Element #2: the quantity of the controlled substance

• The definition of quantity is the weight of the substance possessed.
• Someone who has two grams of a controlled substance is less likely to receive a severe sentence than someone who has 30 kilograms of that same substance.
• In People v. Gonzalez, the defendant received a higher sentence because he had more than half an ounce of cocaine.
• If William from the above example had been arrested with 5 lbs. of marijuana, he would likely receive a harsher sentence than if he were only arrested with 1 oz of marijuana.

Element #3: Intentions

• The definition of intentions is what you intend to do with the drug.
• Generally, intent to sell a drug result in a harsher charge than mere possession alone.
• In People v. Kelly, a defendant who had placed cocaine into vials and numbered the vials was found to have the intent to sell the drug and was charged with criminal possession of a controlled substance in the third degree.
• If William from the above example had been found with 5 lbs. of marijuana, it is unlikely that it would all be for personal consumption. Thus he would likely be charged with a higher degree of crime as the prosecutor would seek to prove he intended to sell the controlled substance. 

Related Offenses 

Charges of Possession of a Controlled Substance in New York may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Operating as a major trafficker

The definition of Operating as a Major Trafficker is acting as the director of an organization that sells more than $75,000 worth of a controlled substance during a calendar year, or as a profiteer that collects more than $75,000 worth of proceeds from the sales of a controlled substance.

The sale of a controlled substance in such a large degree is charged as an A-I felony and can result in a sentence of 24 years in prison and a $50,000 fine. If William from the above example had possession of thousands of pounds of cocaine and hand-sold them, then he would likely be charged with operating as a major trafficker.

Related Offense #2: Criminal sale of a controlled substance

The definition of Criminal Sale of a Controlled Substance is selling a controlled substance without a legal right to do so. Sale of any substance that is not legal to sell constitutes a criminal sale of a controlled substance.

If William from the above example had been caught selling any of his controlled substances, he would likely be charged with the criminal sale of a controlled substance.

Related Offense #3: Criminal use of a controlled substance

The definition of Criminal Use of a Controlled Substance is using a controlled substance without a legal right to do so. Use of any substance that is not legal to use constitutes criminal use of a controlled substance.

If William from the above example had used any of his controlled substances in violation of the law, then he would be charged with the criminal use of a controlled substance

Here are some of the essential and impactful cases.  

There are several cases that have provided more clarity to the Criminal Possession of Controlled Substance laws in New York.

• In People v. Williams, it was held that cocaine residue that was recovered from a defendant, regardless of whether it was a usable amount, gave rise to criminal liability for seventh-degree possession of the controlled substance. This is important because it shows that in general you can be charged with possession for even trace amounts.
• This is refined though by People v. James, which held that while a defendant’s guilty knowledge may ordinarily be inferred from mere possession of controlled substance, it may not necessarily be inferred in a case in which there is mere “residue” of the drug.

This is important because it shows someone who has dollar bills in their possession which contain upon them cocaine residue cannot be assumed to have knowledge of the trace amounts of cocaine upon the currency.

• Finally, in Roe v. City of New York, it was held that authorized personnel who participate in New York’s needle exchange program cannot be held to have any criminal liability with regard to the possession of a controlled substance based upon the drug residue remaining in a used needle or syringe in their possession as part of the exchange program.

Taken together these three cases help us better understand what a prosecutor might be able to charge for and what they might not be able to charge for.

What agencies detect, investigate, and prosecute this crime?

Criminal possession of a controlled substance, charges are investigated by local police departments, and generally charged by local prosecutors. Additional agencies may be involved depending upon the scope and size of your possession.

Federal Agencies such as the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives may possibly be involved. The US Office of the Attorney General may also be involved in the prosecution of the offense.

Since investigation for the Criminal Possession of a Controlled Substance can involve so many possible investigatory and prosecutorial agencies, it can be incredibly difficult to defend against such a charge. A skilled criminal defense attorney such as those at our firm understands how to handle investigations and will help ensure you have your best chance of ensuring your liberty.

Penalties for Violating N.Y. Penal Law § 220.03-25:

Possession of a Controlled Substance in New York can be either a misdemeanor or a felony depending upon the degree of the crime with which you are charged. The potential penalties include:

• probation or up to 1 year in prison
• a fine of $1,000

The penalties for Criminal Possession of a Controlled Substance in most cases include:

• If you are charged with a higher degree, your possible penalties will rise to 2.5 years in prison for 5^th-degree Criminal Possession of a Controlled Substance and a $5,000 fine.
• If you are charged with 4^th-degree Criminal Possession of a Controlled Substance, you will face up to 5.5 years in prison and a possible $15,000 fine.
• If you are charged with 3^th degree Criminal Possession of a Controlled Substance, you will face up to 9 years in prison and a possible $30,000 fine.
• If you are charged with 2^nd-degree Criminal Possession of a Controlled Substance, you will face up to 10 years in prison and a possible $50,000 fine.
• If you are charged with 1st-degree Criminal Possession of a Controlled Substance, you will face up to 24 years in prison and a possible $50,000 fine.

Sentencing Enhancements

There are no specific sentencing enhancements in the NY Penal Law for Criminal Possession of a Controlled Substance. Your sentence will likely be based on the degree of the crime with which you were charged.

Possible consequences can range from probation up to and including 24 years in prison and a $50,000 depending on what degree of the crime with which you are charged.

What are some of the additional consequences of being convicted? 

There are numerous additional consequences of being convicted. Criminal possession of a controlled substance and all other charges related to drugs carry with them serious immigration consequences. Even if you are a legal resident with a green card, you may have your green card revoked and face deportation.

Individuals with DACA status will not be able to renew their status if they are convicted. Additionally, charges for criminal possession of a controlled substance may prevent you from receiving federal student loans and destroy your dreams of higher education.  

Legal Defenses to Possession of a Controlled Substance in New York

Nobody wants to go to jail or pay a fine—and nobody wants a conviction for Possession of a Controlled Substance in New York on their record.

People may start to associate you with this crime, even though they do not understand the specifics of your case. There are several powerful legal defenses you can use to fight these charges. They include:

Defense #1: Possession of the Substance was Legal

One of the defenses for Criminal Possession of a Controlled Substance is that the defendant legally possessed the substance.

In People v. Opris, the court noted that physicians could legally possess controlled substances for use in their professional practices. If Jim, from the above example, had been a physician in a hospital and in possession of large amounts of morphine for medicinal use then his possession would be legal under the act.

Such legal possession would constitute a defense against criminal possession of a controlled substance.

Defense #2: Possession of the Substance was Unknowing

One of the defenses for Criminal Possession of a Controlled Substance is that the possession of the substance was unknowing.

In People v. Camacho, a court found that knowledge could be inferred from mere possession in most cases. Nonetheless, it may be possible to demonstrate that the possession was unknowing such as in instances where there is a video recording of someone else placing the controlled substance in your possession.

Such possession would be unknowing and therefore a defense against criminal possession of a controlled substance.

Defense #3: The Amount did not Meet or Exceed the Statutory Amount

The third defense for Criminal Possession of a Controlled Substance is that the defendant did not meet or exceed the statutory amount set in N.Y. Penal Law § 220.03-25.

While this does not serve as a total defense, it can be useful in lowering the degree with which you are charged. Because the statute has explicit weight limits for some degrees if you have less than that weight of the substance you cannot be charged with that degree. 

Call us for help. 

For questions about Criminal Possession of a Controlled Substance and N.Y, Penal Law § 220.03-25, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. Charges of Criminal Possession of a Controlled Substance are incredibly serious.

They carry with them the possibility of serious jail time depending on the degree with which you are charged. If convicted, it is possible that you will spend decades behind bars. You can also face serious immigration consequences depending upon your immigration status.

It is therefore critical that if you or a loved one are charged with Criminal Possession of a Controlled Substance that you contact a skilled criminal defense attorney immediately. We have local criminal law offices in your area.