Controlled Substances Offenses

Although recent reforms in the sentencing statutes for drug offenders have led to somewhat reduced exposure, if you have been charged with a controlled substance offense, you are still facing a criminal record, significant social stigma, and a potentially lengthy jail sentence. You need the benefit of solid legal advice from attorneys who are well-versed in the law of narcotics and drug cases with the capability to negotiate a favorable disposition or, if need be, take your case to trial.

The defense attorneys at The Law Office of Matthew Galluzzo have successfully represented numerous defendants charged with narcotics-related offenses. As former prosecutors, we have first-hand experience with the wide range of investigative techniques used by law enforcement officers to build cases against suspects. We attack narcotics cases by arguing that law enforcement officers lacked probable cause to search you, your home or your car. We also fight to prove that the narcotics were not actually in your possession, or that you lacked the intent to sell them. There are many other defenses available to defendants – give us a call so we can discuss the best strategy for defending your case.

Recent criminal justice statistics suggest that controlled substances offenses are among the most commonly charged in New York City. Article 220 of the Penal Law sets forth the offenses defining crimes associated with the possession and sale of marijuana, cocaine, heroin, and other common drugs. Each of these substances is either considered a narcotic drug or falls within a schedule of controlled substances, or, in some cases is both a narcotic drug and a controlled substance.

Key Penal Law Provisions:

• Criminal possession of a controlled substance in the seventh degree, PL 220.03, a class A misdemeanor
• Criminal possession of a controlled substance in the fifth degree, PL 220.06, a class D felony
• Criminal possession of a controlled substance in the fourth degree, PL 220.09, a class C felony
• Criminal possession of a controlled substance in the third degree, PL 220.16, a class B felony
• Criminal possession of a controlled substance in the second degree, PL 220.18, a class A-II felony
• Criminal possession of a controlled substance in the first degree, PL 220.21, a class A-I felony
• Use of a child to commit a controlled substance offense – PL 220.28, a class E felony
• Criminal sale of a controlled substance in the fifth degree – PL 220.31, a class D felony
• Criminal sale of a controlled substance in the fourth degree – PL 220.34, a class C felony
• Criminal sale of a controlled substance in the third degree – PL 220.39, a class B felony
• Criminal sale of a controlled substance in the second degree – PL 220.41, a class A-II felony
• Criminal sale of a controlled substance in the first degree – PL 220.44, a class A-I felony
• Controlled substances – PL 220.00

Possession of Controlled Substances

The severity of a possession charge will depend on the amount at hand and whether there are indicia of the intent to sell. The definition of controlled substance makes reference to section 3306 of the Public Health Law. PL 220.00(5). That provision decribes five “schedules” of substances, all of which are “controlled substances” with the exception of marijuana. PHL 3306. Thus, making reference to the Public Health Law, cocaine, heroin, LSD, peyote, mescaline, methamphetamine, psilocybin (“mushrooms”), gamma hydroxbutyric acid (“GHB”), and ketamine are all examples of controlled substances.

Criminal possession of a controlled substance in the seventh degree simply criminalizes the knowing and unlawful possession of any controlled substance. PL 220.03. A person possesses a controlled substance unlawfully when he or she does so in violation of Article 33 of the Public Health Law which governs the distribution of controlled substances. PHL 3310 et seq.

The remainder of the possession charges are more serious offenses that are elevated based on the kind of controlled substance at issue, the amount possessed, whether the possessor did so with the intent to distribute them, or some combination of those two factors.

Quantity-Based Elevation

Here is a list of charges where the elevation is based on the quantity or amount of the controlled substance possessed:

• One-half ounce (CPCS 5, PL 220.06[2]) or 2 ounces or more (CPCS 4, PL 220.09[3]) of a substance containing a “narcotic preparation” (CPCS 5, PL 220.06[2]);
• 50 milligrams or more(CPCS 5, PL 220.06[3]), 250 milligrams or more (CPCS 4, PL 220.09[11]), or 1230 milligrams or more (CPCS 3, 220.16[13]) of phencyclidine;
• One-fourth ounce or more (CPCS 5, PL 220.06[4]), or one ounce or more (CPCS 4, PL 220.09[10]) of“concentrated cannabis” ;
• 500 milligrams or more of cocaine (CPCS 5, PL 220.06[5]);
• 1000 (CPCS 5, PL 220.06[6]) or 4000 (CPCS 4, PL 220.09[14]) milligrams or more of ketamine;
• 28 grams or more (CPCS 5, PL 220.06[7]) or 200 grams or more (CPCS 4, PL 220.06[15]) of gamma hydrobutyric acid (“GHB”);
• One-eighth ounce or more (CPCS 4, PL 220.09[1]), one-half ounce or more (CPCS 3, PL 220.16[12]), four ounces or more (CPCS 2, PL 220.18[1]), or eight ounces or more (CPCS 1, PL 220.21[1]) of a “narcotic drug”;
• One-half ounce or more (CPCS 4, PL 220.09[2]) or two ounces or more (CPCS 2, PL 220.18[2] ofmethamphetamine;
• 1 gram or more (CPCS 4, PL 220.09[4]), 5 grams or more (CPCS 3, PL 220.16[8]), or 10 grams or more (CPCS 2, PL 220.18[3]) of a “stimulant”;
• One milligram or more (CPCS 4, PL 220.09[5]), 5 milligrams or more (PL 220.16[9]), or 25 milligrams or more (CPCS 2, PL 220.18[4]) of lysergic acid diethylamide (“LSD”);
• 25 milligrams or more (CPCS 4, PL 220.09[6]), 125 milligrams or more (CPCS 3, 220.16[10]), or 625 milligrams or more (CPCS 2, 220.18[5]) of a “hallucinogen”;
• 1 gram or more (CPCS 4, PL 220.09[7]), 5 grams or more (CPCS 3, 220.16[11]), or 25 grams or more (CPCS 2, PL 220.18[6]) of a “hallucinogenic substance” ;
• 10 ounces or more of a “dangerous depressant” or 2 lbs. or more of a “depressant” (CPCS 4, PL 220.09[8], [9]);
• 360 milligrams or more (CPCS 4, PL 220.09[12]), 2880 milligrams or more (CPCS 2, PL 220.18[7]), or 5760 milligrams (CPCS 1, PL 220.21[2]) of “methadone.”

Fig. Quantity-Based Elevation

Intent to Sell

If a person possesses a controlled substance with intent to sell, it will almost always result in a felony charge. If the substance possessed is simply a “controlled substance,” and no higher charge is specified, the charge may be the class D felony of Criminal Possession of a Controlled Substance in the Fifth Degree, PL 220.06[1], which reads: “A person is guilty of a criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses . . . a controlled substance with intent to sell it it . . . .” If, however, a person possesses a “narcotic drug,” such as cocaine or heroin, with the intent to sell it, the charge is Criminal Possession of a Controlled Substance in the Third Degree, a class B felony. PL 220.16(1). There are also charges which elevate the seriousness of possession with intent to sell charge based on the amount possessed. See PL 220.16(3) (1 gram of a “stimulant”), PL 220.16(4)(1 mg or more of LSD), PL 220.16(5)(25mg or more of a hallucinogen), PL 220.16(6)(1 gram or more of a hallucinogenic substance), and PL 220.16(7) (1/8 oz. or more of methamphetamine). Finally, in certain cases, a charge may be “bumped up” in gravity if the person charged has a prior conviction for a specified offense. See PL 220.09(11) (250 mg or more of phencyclidine plus a prior conviction for a crime (or an attempt to commit a crime) specified in Article 220).

Completed Sale

The severity of the charge for actual sale of a controlled substance will depend upon the amount sold and the kind of controlled substance at issue. However, it is always a felony in New York to sell a controlled substance, regardless of the amount sold. There are five levels of sale, which roughly mirror the five different felony-level possession charges discussed above. PL 220.31-PL 220.43. The basic charge involves the sale of any controlled substance: “A person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance.” PL 220.31.

A fourth-degree sale charge may lie under the following circumstances:

• Sale of a “narcotic preparation” PL 220.34(1);
• Sale of 10 oz. or more of a “dangerous depressant” PL 220.34(2);
• Sale of 2 lbs. or more of a “depressant” PL 220.34(2);
• Sale of 50 mg or more of “phencyclidine” PL 220.34(4), or any amount of phencyclidine if the seller has a prior Article 220 conviction PL 220.34(6);
• Sale of “methadone” PL 220.34(5);
• Sale of 4000 mg or more of “ketamine” PL 220.34(6-a.);
• Sale of any controlled substance upon school grounds, on a school bus, child day care or educational facility PL 220.34(7-8); or
• Sale of 28 grams or more of GHB PL 220.34(9).

Third-degree sale, a class B felony, may be charged in cases of:

• Sale of a “narcotic drug,” such as cocaine or heroin PL 220.39(1);
• Sale of a stimulant, hallucinogen, hallucinogenic substance, or LSD where the seller has a prior Article 220 conviction, PL 220.39(2);
• Sale of 1 gram or more of a “stimulant,” PL 220.39(3);
• Sale of 1 mg or more of LSD, PL 220.39(4);
• Sale of 25 mg or more of a “hallucinogen,” PL 220.39(5);
• Sale of 1 gram or more of a “hallucinogenic substance,” PL 220.39(6);
• Sale of 1/8 oz. or more of “metamphetamine,” PL 220.39(7);
• Sale of 250 mg or more of “phencyclidine,” PL 220.39(8); or
• Sale of a narcotic preparation to a person less than 21 years old, PL 220.39(9).

The class A-II felony of Criminal Sale of a Controlled Substance in the Second Degree would apply to the following:

• Sale of 1/2 oz. or more of a “narcotic drug,” PL 220.41(1);
• Sale of 1/2 oz. or more of “methamphetamine,” PL 220.41(2);
• Sale of five grams or more of a “stimulant,” PL 220.41(3);
• Sale of 5 mg or more of LSD, PL 220.41(4);
• Sale of 125 mg or more of a “hallucinogen,” PL 220.41(5);
• Sale of 5 grams or more of a “hallucinogenic substance,” PL 220.41(6); or
• Sale of 360 mg or more of “methadone,” PL 220.41(7).

The most serious sale offense, Criminal Sale of a Controlled Substance in the First Degree, a class A-I felony, is reserved for cases of:

• Sale of 2 oz. or more of a “narcotic drug,” PL 220.43(1) or
• Sale of 2880 mg. or more of “methadone,” PL 220.43(2).

Finally, there are several other provisions that provide additional or enhanced penalties for sales on or near school grounds, PL 220.44, and relating to the manufacture of methamphetamine. See PL 220.70-76.

Recent Results

• Client charged with felony possession of ecstasy. Result: case dismissed.
• Client, a stockbroker, charged with misdemeanor possession of cocaine. Result: case dismissed without any professional or licensure consequences.
• Client, a full-scholarhip universtiy student, charged with the felony sale of crystal meth to an undercover officer. Result: case dismissed.
• Client charged with felony sale of ecstasy outside of a concert at Madison Square Garden. Result: charge reduced to non-criminal violation of disorderly conduct.
• Client charged with seventh-degree possession after police executed a search warrant inside an apartment. Result: Client received an adjournment in contemplation of dismissal (“ACD”) with one day of community service.
• Client charged with drug possession after police officers allegedly observed her engaging in a drug transaction inside a vehicle. Result: Client received a disorderly conduct violation (non-criminal disposition) with a 100 dollar fine.
• Client charged with a class “B” felony drug sale. Result: Charge reduced to a misdemeanor; saved client years in jail.