Selling a controlled substance in the state of New York is a felony regardless of the amount or type of substance sold. Although a fifth-degree criminal sale of a controlled substance charge is the least serious charge someone can face for selling drugs, a conviction may still lead to a lengthy jail term.
What the Law Says About This Charge
To be charged with fifth-degree criminal sale of a controlled substance, you must know that what you are selling is a controlled substance. You must also sell it willingly to fall under the purview of this statute. Therefore, the law itself may provide for many defense options in court that may lead to reduced charges or the charge being thrown out entirely.
While an individual may face a prison sentence of up to 17 years for a conviction, a lesser sentence may be given to those without a criminal record. However, it is likely that a conviction will lead to at least five years of probation either instead of a jail sentence or in addition to time served.
Examples of This Charge
Let’s say that an individual decides to sell a gram of marijuana to his friend after school at a local mall. In New York state, it is illegal to possess, use or sell the substance in public. While the possession or use may be decriminalized, the sale of the product may still lead to criminal charges.
Another example would be if an individual sold meth to an undercover police officer of his or her own free will. Before the sale, the officers may ask questions about the product to make sure that the seller knows that he or she is selling an illegal substance. If the sale goes through, that individual may be charged with a crime.
In many cases, prosecutors will charge a person with fifth-degree sale of a controlled substance because he or she didn’t sell enough to qualify for a more serious charge. Prosecutors may also use this charge against those who didn’t sell the drug near a school or a public park.
Possible Defenses to the Charge
It may be possible to argue that an individual did not know that he or she was in possession of an illegal substance. For example, a grandmother with no idea what marijuana looks like may have thought that she was in possession of oregano or another herb.
If that person knew what marijuana was, she may still not be charged with a crime if she sold it under duress. In the event that the sale occurred under threat of bodily harm or threat of bodily harm to a loved one, this person wouldn’t be selling it willingly.
Another defense may center around the fact that the drugs were discovered illegally. This may occur if police engaged in an unlawful search because there was no probable cause or no warrant to conduct a search. Unless the drugs were in plain view of the officer, permission from the individual being searched or a court order would be needed to find them.
Those who are facing drug charges may wish to talk with a NYC criminal lawyer. He or she may be able to help an individual develop a defense against the charge in an effort to obtain the best possible outcome. If successful, a defendant may face reduced penalties such as probation or community service instead of a jail or prison sentence.