New York’s drug laws are codified in Article 220 of the Criminal Penal Law, which covers a wide variety of statutorily defined types of controlled substances. Marijuana is not considered a controlled substance and is treated separately in Criminal Penal Law Article 222. New York’s drug laws have seen significant reforms over the last few decades and, much like the federal statutes, are extremely complex. That is why it is so important to choose an experienced criminal defense attorney, one who is well-versed in both New York State and federal criminal drug laws, to advise you of your rights. Long Island criminal defense lawyer Michael A. Arbeit, P.C. regularly defends clients throughout Nassau and Suffolk counties against drug charges.
What is Criminal Drug Possession?
The existence of a controlled substance is an essential element of a criminal possession charge in New York. Possession means to have actual physical possession, dominion, or control over the substance, and is not the same as ownership. Each of the following elements must be proven in order to sustain a conviction:
- The substance was a controlled substance (or marijuana)
- The defendant possessed the substance
- The defendant’s possession was knowing
- The defendant’s possession was unlawful
There are various levels of criminal possession of a controlled substance, ranging from the class A misdemeanor of criminal possession of a controlled substance in the seventh degree, to a class A felony of criminal possession in the first degree. A class A misdemeanor of criminal possession of a controlled substance in the seventh-degree conviction does not require a minimum weight. This means that a defendant may be found guilty of possessing any amount of a controlled substance. Possessing even as little as mere residue will suffice.
The offense of criminal possession of a controlled substance in the seventh degree may be elevated to a higher degree if the prosecution proves certain aggravating factors. These include:
- The weight of the drug possessed
- An intent to sell
- A prior narcotics offense conviction
For marijuana cases, the charges range from unlawful possession, which is a violation, to criminal possession in the first degree, which is a class C felony. The aggregate weight of marijuana is the most common aggravating factor in elevating a simple possession offense to a higher degree. The charge can also be elevated if the marijuana is observed burning or is open to public view.
What is Criminal Drug Sale or Distribution?
There are five degrees of criminal sale of a controlled substance, the least serious of which is the criminal sale of a controlled substance in the fifth degree. Distribution charges are a Class D felony, the most serious of which involve large amounts of narcotics such as cocaine or heroin. The prosecution must prove that the defendant knowingly and unlawfully sold a controlled substance. The charge may be elevated to more serious levels based on:
- The type of substance sold
- The quantity of the substance sold
- The purity of the substance
- Whether the defendant has a prior drug crime conviction
- Whether the sale occurred in or near a school
It is often misunderstood that a criminal drug sale charge requires an actual sale of a controlled substance in exchange for money. This is not true. The statute broadly defines the term “sell” as “to sell, exchange, give or dispose of to another.” A defendant may be found guilty of selling drugs without having received anything in return. Even an offer or an agreement to give a controlled substance to another will suffice.
What are the penalties?
Controlled substance possession convictions in New York carry a wide range of penalties. Penalties for simple possession go from a fine of $100 and possibly a few days in jail, to hundreds of thousands of dollars in fines and years in prison. A simple drug possession carries the lightest punishment. Intent to distribute comes with heavier penalties. New York classified all convictions for distribution of controlled substances as felonies punishable by 1 to 2.5 years in prison for first-time offenders to a minimum of 8 to 20 years in jail for convictions on first-degree charges. Second-time offenders face 12 to 20 years in prison. Major drug traffickers could get a maximum term of life imprisonment.
Although New York has decriminalized possession of small amounts of marijuana, it does not mean that possession is legal. A person who possesses less than 25 grams of marijuana will not face criminal penalties unless he or she has a prior offense. Otherwise, the person could face civil penalties similar to a minor traffic infraction. A first offense of unlawful marijuana possession is punishable by a $100 fine. A second offense will lead to an increased fine of $200. A third offense, however, will result in a criminal charge punishable by a fine plus jail time of up to 15 days.
Possessing more than 25 grams of marijuana in New York is a criminal offense, ranging from the least serious Class B misdemeanor punishable by up to 3 months in jail and a $500 fine, to more serious marijuana possession crimes that carry much longer prison sentences and larger monetary fines depending on the amount. Publicly burning, selling, and growing marijuana absent a dispensary license are criminal offenses that carry stiff penalties.
How a Long Island Drug Crimes Defense Attorney Can Help
New York and federal drug laws are intricate. The exact amount of the controlled substance or marijuana allegedly possessed determines whether the defendant will face a civil fine or a serious criminal charge. Many of these cases involve questions of whether the actions of law enforcement violated a defendant’s rights under the Fourth Amendment to be free from unreasonable searches and seizures. Because the stakes are so high, you should contact an experienced and knowledgeable Long Island Criminal Defense Attorney to advise you of your best course of action and your rights. If you have been charged with a drug crime, contact Michael A. Arbeit, P.C. today to discuss your case.