Criminal Sale of a Controlled Substance in New York

What puts a person or entity at risk of prosecution?

A person may find themselves at risk of prosecution for the Criminal Sale of a Controlled Substance in New York when they knowingly and unlawfully sell a controlled substance. The type and amount of the substance sold affect the degree of the crime charged and the sentence that may be imposed.

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

The Legal Definition of the Criminal Sale of a Controlled Substance in New York

N.Y. Penal Law § 220.31-43 sets out the legal definition of the Criminal Sale of a Controlled Substance in New York. The Criminal Sale of a Controlled Substance in New York is a felony under state criminal law.

The “elements” of the Criminal Sale of a Controlled Substance in New York are the things that the prosecutor must prove in order for you to be found guilty of this offense. Basically, for a defendant to be convicted in a criminal trial for the Criminal Sale of a Controlled Substance in New York under N.Y. Penal Law § 220.31-43, all of the following must be true:

Unlawful possession or control of a controlled substance.
The sale of that substance.

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

Element #1: Unlawful possession or control of a controlled substance

The definition of the unlawful possession or control of a controlled substance in possession of a substance on the list of controlled substances without the legal right to do so or the dominion over that substance.

In People v. Stapleton, the court ruled that an individual does not have to be in physical possession of a controlled substance to be charged with the Criminal Sale of a Controlled Substance. Rather, merely exercising dominion over that substance is enough even without physical possession.

Consider an example in which Sarah is arrested for instructing and orchestrating the Criminal Sale of a controlled substance through her co-worker. Even though Sarah may not physically ever touch the controlled substance, she may still be charged.

Element #2: Sale of a Controlled Substance

The definition of the sale of a controlled substance is the sale or offer to sell a controlled substance.

In People v. Davis, it was held that “an offer to sell may be established without production or delivery of the drug itself.” This means that even if you don’t physically possess, or even successfully deliver a controlled substance unlawfully, you may still be charged with the Criminal Sale of a controlled substance.

Consider Sarah from the above example. Even if her co-worker were arrested before she could deliver her unlawful controlled substance to its purchaser Sarah could still be charged.

Related Offenses

Charges of the Criminal Sale 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.

Consider Sarah from the above example. If she had possession of thousands of pounds of cocaine and had attempted to sell the drugs, then she would likely be charged with operating as a major trafficker.

Related Offense #2: Criminal possession of a controlled substance

The definition of Criminal Possession of a Controlled Substance is selling a controlled substance without a legal right to do so.

The possession of any substance that is not legal to possess without a valid prescription or other legal purpose constitutes the criminal possession of a controlled substance.

The definition of Criminal Possession of a Controlled Substance is selling a controlled substance without a legal right to do so.

The possession of any substance that is not legal to possess without a valid prescription or other legal purpose constitutes the criminal possession of a controlled substance.

If Sarah from the above example had been caught in possession of any of her controlled substances, then she 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 Sarah from the above example had used any of her controlled substances in violation of the law, then she would be charged with the criminal use of a controlled substance

What agencies detect, investigate, and prosecute this crime?

What is the investigation process like? Do government agencies collaborate with local agencies? Has a federal task force been created to combat this issue? What specific type of wrongdoing are they interested in preventing?

There are several cases in New York criminal law that have refined the law surrounding the Criminal Sale of a Controlled Substance in New York.

Cases in New York

One such case is People v. Bobb, in which it was determined that an aggregate weight of 1.875 oz was insufficient to meet the definition of the Criminal Sale of a Controlled Substance in the First Degree although it may be sufficient for a lesser degree.

In People v. Fulton, the court ruled that even if a controlled substance was not available to examine, the defendant’s prior testimony that the substance was LSD and that the defendant had told people it was LSD was sufficient to support a conviction.

This was able to overcome his argument that since the substance wasn’t available, he couldn’t be convicted of selling it. This demonstrates that the substance need not be available for testing for a conviction.

In People v. Crampton, it was held that a bona fide offer to sell an unlawful controlled substance is sufficient to meet the requirements of a statute and that the completion of an actual sale is not required. This demonstrates that if someone offers to sell a controlled substance illegally, they may still be charged with the Criminal Sale of a Controlled Substance– even if the actual sale is not actually completed.

What is Criminal Sale of a controlled substance?

The Criminal Sale of a controlled substance charge is 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 an investigation for the Criminal Sale 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 § 220.31-43:

The Criminal Sale of a Controlled Substance in New York is a felony. There are multiple degrees with which you may be charged. You can think of these as “levels” of a crime with the First Degree being the most severe. The potential penalties include:

The penalties for the Criminal Sale of a Controlled Substance in New York in the Fifth Degree range from probation with no jail time up to 4 years in prison
The penalties for the Criminal Sale of a Controlled Substance in New York in the Fourth Degree range from probation with no jail time up to 7 years in prison
The penalties for the Criminal Sale of a Controlled Substance in New York in the Third Degree range from a minimum of one year in prison up to 15 years in prison
The penalties for the Criminal Sale of a Controlled Substance in New York in the Second Degree range from a minimum of 3 years in prison up to life in prison
The penalties for the Criminal Sale of a Controlled Substance in New York in the First Degree range from a minimum of 15 years in prison up to life in prison.

Sentencing Enhancements

There are no specific sentencing enhancements in the NY Penal Law for the Criminal Sale 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 life in prison depending on the 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. The Criminal Sale 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 the Criminal Sale of a controlled substance may prevent you from receiving federal student loans and destroy your dreams of higher education.

Legal Defenses to the Criminal Sale of a Controlled Substance in New York

Nobody wants to go to jail or pay a fine—and nobody wants a conviction for the Criminal Sale 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 the Criminal Sale 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 the Criminal Sale of a controlled substance

Defense #2: Possession of the Substance was Unknowing

One of the defenses for the Criminal Sale 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 the Criminal Sale of a controlled substance.

Defense #3: The Type of Controlled Substance did not fall within the Statute

The third defense for the Criminal Sale of a Controlled Substance is that the type of substance did not fall within the statute. While this does not serve as a total defense, it can be useful in lowering the degree with which you are charged.

This is what happened in People v. Bobb, in which it was determined that weight below the statutory degree amount was insufficient to support a conviction for the degree charged.

Because the statute has explicit classifications for the types of controlled substances that fall within First, Second, Third, and Fourth Degree if you can prove that you did not sell a substance that falls within one of those statutory classifications then you cannot be charged with that degree of the crime.

Call us for help.

For questions about the Criminal Sale of a Controlled Substance and NY Penal Law § 220.31-43, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. Charges of the Criminal Sale 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 the Criminal Sale of a Controlled Substance that you contact a skilled criminal defense attorney immediately.

We have local criminal law offices in your area.