Fighting for You: Understanding New York’s Drug Laws

Notice: If you are needing to sue for damages or a victim of a crime please reach out to a civil attorney or the police.

Historically, New York State’s drug possession laws have been some of the most strict in the country. There are various statutes regulating the types of drugs (illegal and legal), the sale of drugs and the possession of drugs. Understanding the law, especially if you have been arrested for a drug crime in New York, is an important first step in protecting and defending your rights.

WHAT IS A CONTROLLED SUBSTANCE (DRUG) UNDER NEW YORK LAW?

Controlled substances include both illegal drugs, such as heroin, methamphetamines and cocaine, and some prescription medications like Vicodin, OxyContin, Ambien and Ritalin. Possession alone of illegal substances is a crime in itself. The possession of legally controlled substances (prescription drugs) is a criminal offense if you don’t have a legal prescription to possess or take them.

Being convicted of possessing illegal controlled substances (drugs) or legal substances without a prescription could result in jail time, fines and probation. In addition, a conviction will result in having a permanent criminal record which would show up on a standard background check.

HOW IS POSSESSION DEFINED IN DRUG POSSESSION CHARGES?

To understand “possession” under New York law, it is necessary to understand the legal concept of the “presumption of possession.” For example, if the police stop someone for a traffic violation and discover drugs in the car, it is presumed that everyone inside the car knows of the presence of such illegal drugs or controlled substances (whether they actually do or not) and are therefore in violation of the law. The same concept applies to people in a room or a house. Every person found inside a room (or a house) or within a close proximity (it could even be a different room in the same house) of a compound or mixture of illegal drugs or marijuana, unless it is a public place, may be charged with illegal possession of drugs.

The presence of a narcotic drug, narcotic preparation, marihuana or phencyclidine in plain sight or in the open within a room, other than a public place, where there is evidence of an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession, and every person in close proximity to such controlled substance at the time such controlled substance was found.

IT’S A CRIME TO USE CHILDREN TO COMMIT A CONTROLLED SUBSTANCE OFFENSE

Under New York Penal Law Section 220.28 it is a crime when a person uses “a child to commit a controlled substance offense when, being eighteen years old or more, he or she commits a felony sale or felony attempted sale of a controlled substance in violation of this article and, as part of that criminal transaction, knowingly uses a child to effectuate such felony sale or felony attempted sale of such controlled substance.”

CRIMINAL SALE OF A CONTROLLED SUBSTANCE 1ST TO 5TH DEGREE

The severity or class of New York’s criminal sale of controlled substance offenses are considered in degrees depending on the kind of substance, where it was discovered, the amount discovered and the number of times the offender has been charged, fined and punished for violating the laws under the same article. These criminal sale crimes are often charged in Westchester County:

• NY Penal Law § 220.43 (A-I Felony) Criminal Sale of a Controlled Substance in the First Degree
• NY Penal Law § 220.43 (A-II Felony) Criminal Sale of a Controlled Substance in the Second Degree
• NY Penal Law § 220.39 (B Felony) Criminal Sale of a Controlled Substance in the Third Degree
• NY Penal Law § 220.34 (C Felony) Criminal Sale of a Controlled Substance in the Fourth Degree
• NY Penal Law § 220.31 (D Felony) Criminal Sale of a Controlled Substance in the Fifth Degree

The crimes are elevated and the penalties become more severe if the drugs are sold on school grounds, the grounds of a child day care or at an educational facility. All of the following are included under the law:

1. narcotic preparation
2. depressants (and its variations)
3. concentrated cannabis
4. phenycyclide
5. methadone
6. ketamine
7. stimulant, hallucinogen, lysergic

CRIMINAL POSSESSION OF A HYPODERMIC INSTRUMENT.

“A person is guilty of criminally possessing a hypodermic instrument when he knowingly and unlawfully possesses or sells a hypodermic syringe or hypodermic needle.” Criminally possessing a hypodermic instrument is a class A misdemeanor.

CRIMINAL INJECTION OF A NARCOTIC DRUG

Injecting a narcotic drug is itself a felony criminal charge under New York Law. “A person is guilty of criminal injection of a narcotic drug when he knowingly and unlawfully possesses a narcotic drug and he intentionally injects by means of a hypodermic syringe or hypodermic needle all or any portion of that drug into the body of another person with the latter's consent. Criminal injection of a narcotic drug is a class E felony (NY Penal Law § 220.46).

CRIMINAL POSSESSION OF PRECURSORS OF CONTROLLED SUBSTANCES

Precursors are chemical substances or compounds manufactured primarily for the purpose of producing a controlled substance. Which means that having the ingredients to make certain drugs can be a crime in itself, under New York law. For example, Acetic anhydride, which is used in the production of cellulose acetate, colorings, flavorings or medicines (aspirin), is also a key chemical to produce heroin. “A person is guilty of criminal sale of a prescription for a controlled substance when, being a practitioner, he knowingly and unlawfully sells a prescription for a controlled substance. For the purposes of this section, a person sells a prescription for a controlled substance unlawfully when he does so other than in good faith in the course of his professional practice.”

If you or someone you know has been charged with any drug related crime, don’t leave their defense to chance, contact Riebling & Payton, PLLC for a free consultation (914) 712-6878.