Criminal punishment for drug possession in New York is very specific depending on the type and amount of controlled substance found in a defendant’s possession. While a small amount of marijuana may result in payment of a fine and no criminal charges, possession of cocaine, methamphetamine and other controlled substances can result in probation, jail time, license suspensions and more.
Heiferman & Associates, PLLC is a criminal defense law firm with the knowledge and skills to represent you on charges for possession of a controlled substance. Our attorneys have experience prosecuting and defending drug crimes and will aggressively fight to protect your rights through all stages of your case.
What is drug possession in New York?
New York statute defines drug possession broadly. To possess an illegal substance means to have physical possession or otherwise to exercise dominion and control over the illegal substance.
The most basic form or possession is to have illegal substances on your person, either in your hand, pocket, or otherwise concealed. The definition becomes broader when applying the exercise of dominion or control. This extends possession to illegal substances in a backpack, bag, package, room, drawer, or vehicle. Essentially anywhere only the defendant generally has control over.
Specific Laws Relating to Cars
If illegal substances are in an automobile, other than a public bus, every occupant of that automobile is presumed to have knowledge of possession of the substance and can be held criminally liable. This means if a defendant is riding in a car with three friends and one of the friends put drugs in the glove compartment before the defendant got into the car, the defendant is still presumed to have knowing possession over the drugs.
There is an exception to this presumption where one of the occupants legally possesses the substance or when the illegal substance is hidden on the body of another occupant (in a pocket). This can lead to the arrest of all the vehicle occupants.
Controlled Substances Defined
A controlled substance is one that is included in a lengthy list of illegal substances classified by New York Public Health Law § 3306. While the complete list of illegal or controlled substances includes hundreds of substances, the most common are marijuana, cocaine, crack cocaine, heroin, oxycodone, morphine, codeine, methamphetamine, fentanyl, and methadone. Unless a drug is specifically referred to by the New York statute, classified illegal substances are referred to as narcotic drugs (such as heroin or codeine).
Crime of Possession of a Controlled Substance
In the state of New York, it is illegal to possess (either physically or by possessing control over) a controlled substance (as defined by New York Public Health Law § 3306). The punishment for possession of a controlled substance varies by the type of substance and by the amount in possession. There are six different levels for the possession of a controlled substance and the severity of punishment for each level depends on the amount in possession.
Lesser Severity
The only charge for possession of a controlled substance that is not a felony is generally possessing an insignificant amount of the substance. That means possessing less than the minimum amount for a felony. One example of possession of an insignificant amount is possessing less than 500 milligrams of cocaine. Possession of such a small amount of cocaine is considered a Class A misdemeanor punishable by no more than one year in prison and a fine of up to $1,000.
Possession of marijuana is still a crime in New York. However, a first offense of a small amount is charged as a violation and only punishable by a fine of less than $100, not by imprisonment. The second conviction of possession of marijuana within three years carries a stiffer $200 fine. On the third offense, a defendant may face a fine of $250 or up to fifteen days in jail. Other aggravating factors such as public use of marijuana or possession with the intent to sell marijuana elevate the crime to a felony punishable by longer prison sentences.
Greater Severity
- Possession in the fifth degree refers to the possession of:
- A substance with the intent to sell it
- A narcotic drug weighing more than a one-half ounce
- PCP weighing more than 50 milligrams
- Concentrated cannabis weighing more than one-fourth an ounce
- Cocaine weighing more than 500 milligrams
- Ketamine weighing more than 1,000 milligrams or ketamine after previously been convicted of possessing ketamine
- GHB weighing more than 28 grams
Possession of a controlled substance in the fifth degree is a Class D felony punishable by up to seven years in prison and a $5,000 fine.
- Possession in the fourth degree refers to the possession of:
- A narcotic drug weighing more than one-eighth an ounce
- Meth weighing more than one-half an ounce
- LSD weighing more than one milligram
- PCP weighing more than 250 milligrams (or more than fifty milligrams with the intent to sell and a prior conviction)
- Concentrated cannabis weighing more than one ounce
- Methadone weighing more than 360 milligrams
- Ketamine weighing more than 4,000 milligrams
- GHB weighing more than 200 grams
- Various quantities of stimulants, hallucinogens, or dangerous depressants
Possession of a controlled substance in the fourth degree is a Class C felony punishable by up to fifteen years in prison and a $15,000 fine.
- Possession in the third degree refers to the possession of:
- A narcotic drug with the intent to sell
- LSD in quantities greater than five milligrams (or one milligram with the intent to sell)
- Meth in quantities greater than one-eighth an ounce
- PCP weighing more than 1,250 milligrams
- Meth weighing more than one-eighth an ounce
- Various quantities of stimulants, hallucinogens, or dangerous depressants.
Possession of a controlled substance in the third degree is a Class B felony punishable by up to twenty-five years in prison and a $30,000 fine.
- Possession in the second degree refers to the possession of:
- A narcotic drug weighing more than four ounces
- Meth weighing more than two ounces
- LSD in quantities greater than twenty-five milligrams
- Methadone weighing more than 2,880 milligrams
- Various quantities of stimulants, hallucinogens, or dangerous depressants
Possession of a controlled substance in the second degree is a Class A-II felony punishable by up to life in prison and a $50,000 fine.
- Possession in the first degree refers to the possession of:
- A narcotic drug weighing more than eight ounces
- Methadone weighing more than 5,760 milligrams
Possession of a controlled substance in the first degree is a Class A-I felony punishable by up to life in prison and a $100,000 fine.
Defenses for Drug Possession
The most common defense to a possession of a controlled substance charge is that the police violated a defendant’s Fourth Amendment rights by conducting an illegal search and seizure. Other defenses include wrongful identification, mistake, or failure to meet all the elements of the crime of possession of a controlled substance. First-time offenders of serious controlled substance charges in New York may be eligible for intensive treatment programs that could result in dismissal of charges upon completion.
Contact a Queens Drug Possession Defense Attorney Today
These laws are subject to change. If you are charged with drug possession, from marijuana to methadone, you are entitled to the presumption of innocence and the opportunity to defend yourself. Heiferman & Associates, PLLC is a premier criminal defense firm well versed in the New York Penal Code. Our attorneys have extensive experience in both criminal prosecution and defense and understand the complexities of the prohibitions against possession of a controlled substance. As a client of Heiferman & Associates, PLLC you gain professional attorneys on your side, dedicated to obtaining the best outcome for you.