New York Penal Code 220.21: Criminal possession of a controlled substance in the first degree
In New York, all controlled substance charges are serious offenses. However, the most serious of the charges is criminal possession of a controlled substance in the first degree. A conviction can mean up to life in prison.
What qualifies as a first-degree possession charge
The charge of first-degree criminal possession of a controlled substance is quite specific in New York. It involves possession of certain narcotic drugs. You must have eight or more ounces of the narcotic in order to receive a first-degree charge. Alternatively, if you have more than a certain quantity of methadone you can also receive a first-degree possession charge. New York’s first-degree possession of a controlled substance law is New York’s penal law 220.21.
Penalties and sentencing
A first-degree possession charge is a very serious offense because of the possibility of life in prison. In addition to the maximum possibility, you also face a mandatory minimum term in prison of fifteen years. That means if you’re convicted as charged, the judge doesn’t have the option to give you less than fifteen years in prison.
How much time you actually serve depends on the specific nature of your offense. The court also looks at your criminal history. When your NYC criminal attorneys work on your case, they can help you consider whether it’s in your best interests to go to trial or to negotiate a plea deal to a reduced charge.
Ways to defend your case
There are a number of different ways that your defense team can attack the charges against you. In the United States and in New York, you’re innocent until proven guilty. It’s up to the police to prove the charges against you. They must collect their evidence in a lawful way.
Constitutional search and seizure laws
The first thing your attorney might do is evaluate the traffic stop or the search of your property. Under the Fourth Amendment of the U.S. Constitution, you have the right to live your life peacefully without unreasonable interference from police. That’s the case if you’re in your home, walking down the street or driving a moving vehicle.
If the police search your property in an unlawful way, they can’t use the evidence that they find against you in court. Your attorney can file a pretrial motion to ask the judge to throw out the evidence against you. If the police can’t tell the jury that you had a controlled substance, there’s no case. This is a great way to defend yourself if the police acted unlawfully.
Proving every element
When you go to trial, it’s up to law enforcement to prove the charges against you. That means they have to show that you knew you possessed the drugs. If someone else threw the drugs in your yard as they ran from the police, you didn’t knowingly possess the drugs. If your relative put the drugs in your purse as a prank, you didn’t knowingly possess the drugs.
The police also have to prove that the substance is controlled. That means they should test the substance and have a report to show the jury. They also have to prove that you didn’t have a lawful right to possess the drugs. That could be an issue if you’re charged with possessing a prescription drug.
Explore all of your options
A first-degree controlled substance possession charge can be devastating. It’s important that you explore all of the defenses available to you. A strong defense can save you from years in prison and a life changing criminal history.
New York Penal Code 220.18: Criminal possession of a controlled substance in the second degree
Even if you didn’t intend to sell or distribute a controlled substance, possession of a controlled substance is a serious criminal offense in New York. The greater the quantity of the substance, the greater the possible criminal penalties. Criminal possession of a controlled substance in the second degree is a New York class A-II felony under New York penal code 220.18.
A conviction for second degree controlled substance possession can bring a sentence of up to ten years in prison. There’s also a minimum sentence of three years. That means the judge can sentence you to prison for anywhere from three to ten years.
There are increased penalties if you’re convicted two or more times. There are also increased penalties if you have a previous violent conviction on your criminal history. Once you’re released from prison, you’re probably going to stay under court supervision for a number of years.
For a charge of criminal possession of a controlled substance in the second degree, you must possess four ounces or more of most drugs. In the case of methamphetamine, you only need to possess two ounces. There are many other drugs that can bring a second-degree possession charge, depending on the amounts in your possession. Some examples of these are hallucinogens, stimulants and methadone. At Spodek Law Group, we’re the NYC criminal lawyers with extensive experience helping clients evaluate their case to see if the state made charging errors that could be fatal to the case.
Preparing your best defense
If you’re facing these serious charges, there are a number of ways that you can defend yourself. In a court of law, you don’t have to prove your innocence. Rather, the police have to prove every element of a crime in order to show that you’re guilty.
The police have to show the jury that you knew you had the drugs. If you pick up the wrong backpack at school and the backpack has drugs in it, you’re not in knowing possession of a controlled substance. Likewise, if someone plants the drugs on you and then calls the police, you’re not in knowing possession of the drugs.
Medical emergency exception
It’s a valid defense to a drug possession charge that you or someone in your vicinity sought help for a medical emergency. For example, two people overdose on drugs in someone’s home. One person realizes that the other needs medical attention and calls for emergency medical services.
When the medical technicians arrive, they find large quantities of drugs at the scene. Even though they found the drugs, the people in the home can’t face charges for possession of the drugs. That’s because New York has decided that it’s good public policy to allow people to call for emergency help when they need it without having to worry that they’re going to face serious criminal consequences as a result.
Unlawful search defenses
You might also be able to defend your case on the grounds that law enforcement conducted an unlawful search of your person or property. This is a constitutional defense. Law enforcement can only search your property if they have a search warrant, if there is an emergency warrant exception or if they take advantage of one of a number of other limited ways to lawfully search private property. The laws on search and seizure are often subtle, and they can change as new cases move through the courts. If law enforcement violated the law in your case, the result can be dismissal of the criminal charges.
New York Penal Code 220.16: Criminal possession of a controlled substance in the third degree
If you find yourself facing criminal possession of a controlled substance charges in New York, it can be hard to understand exactly why you received a specific charge. In New York, criminal possession of a controlled substance charges are divided by degree. First degree is the most serious, and seventh degree is the least serious.
Different ways to face a third degree possession charge
All drug possession charges are serious in New York, and third degree possession charges are no exception. If you’re convicted of possession of a controlled substance in the third degree, you’re convicted of a class B felony. That means you’re going to serve at least one year in jail, and you might serve up to nine years in jail. If you’ve got a criminal history, you might spend even more time in jail, especially if your prior offense is violent in nature. With a prior violent offense on your criminal history, you can spend up to fifteen years in prison for a class B felony conviction.
Third degree classifications
To face a charge of possession in the third degree, you must have a certain quantity of a specific controlled substance. Not all substances are created equal in this regard. What might be a third degree amount of one substance might be a first degree amount of another substance.
The classification laws are very specific and can even be confusing, so it’s important to work with a skilled NYC criminal lawyer to evaluate your case for possible defenses. Marijuana is not included in charges for possession of a controlled substance charges. Marijuana is illegal in New York, but there’s a completely separate law for that.
Possession vs. selling
Possessing and selling drugs are two different charges under New York law, but intent to sell can be a third degree possession charge in some cases. If you have any amount of a narcotic drug that you intended to sell, it can mean a third degree controlled substance possession charge. Otherwise, there are separate and distinct charges for selling drugs as opposed to possessing them in New York. If it looks like you had plans to sell the drugs or if you had drugs in a large enough quantity that you couldn’t possibly use them all yourself, you might find yourself facing a charge of criminal possession in the third degree or a separate charge of selling drugs.
Defending yourself against the charges
Because of the seriousness of the charges, it’s important to evaluate available defenses such as law enforcement’s inability to prove the case or whether law enforcement found the evidence unlawfully. The police have to prove every element of the offense. That means they have to prove that you actually had possession of the drugs and that you knew you had possession of the drugs. If you had the drugs accidentally or they were far enough away from you and your control that they might not have been yours, a jury might take your side and find you not guilty.
Your attorney can also help you evaluate whether the police violated the constitution when they searched your property. If law enforcement stormed in and searched you or your property without probable cause and without a search warrant, you can ask the court to throw out your charges. Search and seizure laws are based on the United States Constitution, so the police can’t make their own rules when it comes to searching private property. Your case is important to your future, so it’s important to prepare every possible defense.
New York Penal Code 220.09: Criminal possession of a controlled substance in the fourth degree
Criminal possession of a controlled substance in the fourth degree is a class C felony under New York Penal Code 220.09. If you’re convicted of a class C felony, you face between one and five-and-a-half years in prison. Because it is a felony and because it carries a mandatory minimum sentence of at least one year of incarceration, this is a serious offense.
The degrees of drug offenses
Drug possession crimes in New York are divided by degrees. The more serious the offense, the closer it’s going to be to a charge in the first degree. Charges range from first degree to seventh degree with seventh being the least-serious available charge.
What charge you face depends on the specific substance that you had and the quantity that law enforcement finds in your possession. For example, if you possess a gram or more of a stimulant you can face fourth degree possession charges. For a narcotic drug, you need to possess only one-eighth of an ounce or more in order to face a fourth degree possession charge. In the case of a depressant, you must have two pounds or more to face a fourth degree charge.
New York law lists a wide variety of substances that can fall under the fourth offense possession charge. In each case, the quantity is a little bit different. It’s important to work with an attorney that understands the nuances of the law and can help you evaluate the case for possible defenses in this area.
One option for individuals facing a charge of criminal possession of a controlled substance in the fourth degree is participation in a drug court. Drug courts are a relatively modern court program that aims to help offenders stop using substances. If a substance abuse problem might have contributed to your substance possession offense, you might be a candidate for participation in this program.
Drug courts are not easy. They’re only a viable option if you’re serious about stopping substance use. When you’re in drug court, you can expect strict monitoring to make sure that you’re not using substances. You can also expect to participate in any treatment programs that the court thinks might be helpful to assist you with achieving and maintaining sobriety. This can include substance abuse counseling.
If you complete the program successfully, you can receive a reduction in your criminal charges. The idea is that the promise of a reduced penalty can help you find the motivation to stop using substances. That way, you can become a lawful and productive member of society. If you’re facing a possession charge, we invite you to talk with our NYC criminal lawyers at Spodek Law Group about this option.
Other available defenses
There are other ways that you might be able to defend yourself against the charges. Law enforcement has to be able to prove what exactly the substances are. If they fail to test the substances or if they are not the substances that law enforcement initially claimed, you might see your case dismissed.
In addition, law enforcement has to prove that you are the one that had possession of the drugs. That means that you had to have the ability to exercise control or power over the drugs. For example, if you are a front-seat passenger in a vehicle and the drugs are under the driver’s seat, it might be hard for law enforcement to prove that you knowingly had possession of the drugs. Exploring every available defense to you can help you fight your charges and protect your future.
New York Penal Code 220.06: Criminal possession of a controlled substance in the fifth degree
There are a large number of substances that fall under New York’s controlled substance laws. With the exception of marijuana, any substance that’s classified as a controlled substance in schedules one through five counts for the purposes of New York’s controlled substance laws. For example, substances such as Vicodin and Oxycontin can lead to controlled substance charges if you don’t have a valid prescription to possess the drugs.
Charges by degrees
Criminal possession of a controlled substance is actually several different degrees of criminal charges. The degrees are separated out by how much of the substance the person has in their possession. Fifth degree is not as serious as other possession charges, but it is still a class D felony. It’s punishable by up to seven years in prison under N.Y. Pen. Law § 220.06. If you’re facing a fifth degree controlled substance possession charge, it’s important to work with an NYC criminal attorney to explore all of the defenses available to you, because a class D felony can carry a mandatory minimum term in jail.
If you’re facing a fifth degree possession of a controlled substance charge, there are a number of common defenses available to you. In certain situations, you might have a complete defense to the charges. It’s also possible to consider alternative sentencing options such as drug court.
To convict you in a court of law, law enforcement has to be able to prove is that you knew you had unlawful possession of a drug. If another person put the drugs in your backpack to try to avoid their own criminal charges, you may have a valid defense. If you thought you were holding a valid prescription for a relative, that can be a defense. Your attorney can help you explore all of the options to see if law enforcement can prove this element of the charges against you.
Unlawful search and seizure
In the United States, we have the right to live without unlawful interference from the police. That means that the police can’t just stop your vehicle and search it. They can’t just walk into your house and look for drugs, either.
Law enforcement needs to have a lawful reason to stop a moving vehicle. They can only search a vehicle in a few specific circumstances. Likewise, law enforcement generally needs either an invitation or a search warrant to look for drugs inside someone’s home. If law enforcement didn’t do their job in a legal way, the result can be a dismissal of the charges against you.
Seeking medical care
New York has a law that allows people to seek help for medical emergencies. A medical emergency can include a drug overdose. New York has decided that it’s good for people to seek help when they have medical emergencies, and they shouldn’t have to worry about whether they’re going to face possession charges if they seek medical help. That means if law enforcement found you in possession of a controlled substance while you or someone else sought help for a medical emergency, you may have complete immunity to the charges against you.
If you agree to participate in a drug court, your attorney might be able to negotiate a reduction or a dismissal of the charges against you. Drug court is like an intense probation. If you complete all of the treatment and monitoring during your term in drug court, you can get a reduction or dismissal of the charges against you in exchange for your participation.
New York Penal Code 220.03: Criminal possession of a controlled substance in the seventh degree
Although possession of a controlled substance is one of the more common charged offenses in New York courtrooms, it’s still a very serious offense. The seriousness of the charge depends specifically on how much of the substance you possess. Criminal possession of a controlled substance in the seventh degree is the least serious of the controlled substance possession charges. Even so, criminal possession of a controlled substance in the seventh degree is a class A misdemeanor. That means that you can spend up to one year in jail and pay a $1,000 fine if you’re convicted under N.Y. Pen. Law § 220.03.
What is a controlled substance?
A controlled substance is any substance that’s listed in schedules one through five of the public health code except for marijuana. If there’s any question, it’s important that you work with your attorney to evaluate whether the substance found in your possession is actually a controlled substance. If it’s not, you might have a clear defense to the charges against you.
Possession of a controlled substance does not include marijuana under this law. Possession of marijuana is still illegal in New York. However, it’s charged under its own law with different degrees for varying amounts.
One example of a controlled substance that you can possess legally with a prescription is Vicodin. If you encounter law enforcement, and they find that you have Vicodin, they might assume that you’re possessing the drug illegally. If you have a valid prescription, you can defend yourself from the charges. For this reason, it’s important and helpful to keep prescriptions in their original pharmacy bottles.
The same prescription defense can work for other types of prescription drugs that are commonly traded or sold illegally. If you have a lawful prescription for the drugs, it’s not illegal for you to possess them. It’s still illegal for you to sell the drugs or give them to other users, but a valid prescription is a good defense to a possession of a controlled substance charge.
A residual amount as part of a syringe exchange
New York law makes an important exception in the seventh-degree possession of a controlled substance law. This exception is for what the law considers a residual amount of a substance. That is, when law enforcement finds a controlled substance, they have to find more than just a trace of it on a needle. The purpose of this exception is to allow people to participate in needle exchange programs without having to worry about arrest.
Medical emergency exception
Another common exception to possession of controlled substance charges is a medical emergency. If you or someone you’re with needs emergency medical care, you’re able to seek that care without worrying about getting arrested. This is true even if the person needs help because of an overdose. If law enforcement responds to the emergency, they can’t charge you with possession of controlled substances that they find while they’re helping you with the emergency. At Spodek Law Group, our talented team of NYC criminal lawyers can help you evaluate whether the medical emergency exception is available to you.
Ultimately, the penalties for a possession charge depend on the seriousness of the offense and your criminal history. You might consider alternative sentencing in a drug treatment court. If you qualify, you can participate in a special probation that’s meant to help you conquer a substance abuse issue. If you complete probation, you can receive a dismissal or a significant reduction of the charges that remain on your criminal history.