Drug Related Crimes | Lawyers & Attorneys
Drug crimes are some of the most controversial in the criminal justice system. While many prosecutors seek incarceration for drug possession and drug sales, others like counselors and criminal defense lawyers see the benefit that rehabilitation and drug courts can have on families and the community.
Whatever your experience or feelings, New York and the Federal Government still takes a very strong position against drugs, especially selling them. While reading this, note the many differences between how the Federal Government and New York differentiate drug crimes. By way of example, New York has moved towards decriminalizing many of the marihuana offenses, however the Federal Government has not.
Finally, not every drug crime is listed here. For instance, in New York, there are 15 different ways to be charged with Criminal Possession of a Controlled Substance in the Fourth Degree. However, this guide is meant to detail how New York and the Federal Government categorizes various drug crimes and the authorized punishments for them.
Frequently Asked Questions About Drug Related Crimes
Our criminal defense lawyers provide answers to some important questions below.
New York Penal Law defines almost all drug offenses in Article 220. The only drug that is not found in article 220 of the Penal Law is marihuana, which is found in Penal Law Article 221. See our Marihuana FAQ tab for more information on that specific drug.
Drug Crimes are broken down into two main categories: possession and sale. Generally speaking, selling a drug is more serious than possession. However, it is important to note that if you possess certain amounts of drugs, the law may presume that you are possessing the drug with the intent to sell it. These possession cases can sometimes be just as serious as actual sales.
Possession and sale crimes are broken into two more categories: type of drug and amount. New York classifies controlled substances into broader categories including:
- Narcotics
- Narcotic Preparations
- Hallucinogens
- Stimulants
- Depressants
- Methamphetamine
- Marihuana
All fall under the broad category of “controlled substances”. All drugs listed in Schedule I, II, III, IV, or V of New York Public Health Law §3306 are controlled substances, except for marihuana, but including concentrated cannabis.
For some drugs, the government only has to prove the weight of the substance no matter how much actual “drug” it includes. In other words, if “crack” is cocaine, baking soda, and water, its irrelevant how much of each is included – whatever the “crack” weighs, that is the weight you will be charged with.
On the other hand, some crimes look to the pure drug weight itself. For mushrooms, the government must extract the psilocybin and determine its amount, rather than just weighing the entire mushroom itself.
Yes. “Possess” or “Possession” can be actual or constructive. Actual means it is in your hand, a pocket, or any belonging you have with you. Constructive means more than one person has access to the drugs. For example, if you are in a vehicle and drugs are in a glove box, center console, under the seat, you can still be charged with constructive possession.
No. You can only be convicted of a drug offense if you possessed the drugs, and if you knew what the drugs were. “Knowingly” means that you are aware that the item or substance contains a controlled substance.
Yes. “Sell” means to sell, exchange, give, or dispose of to another. In other words, “giving” a controlled substance to a friend, for no money, is a drug sale in New York. Sharing drugs with friends at a party is a drug sale. While this is rarely the type of case that is brought, it technically can be.
Yes. Possession charges are broken down into 7 degrees, though notably there is currently no crime defined as Criminal Possession of a Controlled Substance in the Sixth Degree (CPCS 6). Below is a list of the various drug possession crimes, their elements, and maximum punishments. If you have been charged with any of the offenses listed below, the consequences of that offense are detailed for your review.
This is the lowest drug possession charge. You can be charged with this anytime you knowingly and unlawfully possess a controlled substance. Weights and types are irrelevant here. If the drug fits the definition of a controlled substance, you may be charged with this offense. CPCS 7th is a class A misdemeanor. You face up to 1 year in local jail, up to 3 years of probation, and a maximum fine of $1,000. You could also be ordered to engage in some type of rehabilitation or substance abuse counseling and may also be required to perform community service.
CPCS 5th is most commonly charged when a person knowingly and unlawfully possesses any controlled substance with the intent to sell it. Remember that “sell” has a very broad definition. It can also be charged in the following circumstances without any intent to sell:
- ½ ounce or more of a Narcotic Preparation (Includes Opium-extracts and some other drugs)
- 50 milligrams or more of Phencyclidine (PCP, Angel Dust)
- ¼ ounce or more of concentrated Cannabis
- 500 milligrams or more of Cocaine
- Over 1000 milligrams of Ketamine (Frequent “date rape” drug)
- 28 grams or more of a substance containing Gamma Hydroxybutyric Acid (like, but not the same as MDMA/Ecstasy)
CPCS 5th is a class D felony. Therefore, you face up to 2½ years in a state correctional facility with an additional 1 year of post-release supervision. Your prison term could involve CASAT or SHOCK. You could serve up to 1 year in local jail, or probation for up to 5 years. You may also be sentenced to take part in Judicial Diversion or another Drug Court program. Your driver’s license and registration may be suspended for 6 months. You may also be fined up to $5,000 or be ordered to pay restitution and other fees.
CPCS 4th has many different subdivisions, but likely will be charged in one of the following circumstances:
- 1/8 ounce or more of a substance containing a Narcotic Drug (Heroin, Cocaine)
- ½ ounce or more of a substance containing Methamphetamine
- 2 ounces or more of a substance containing a Narcotic Preparation
- 1 gram or more of a Stimulant (Adderall, Ritalin)
- 1 milligram or more of Lysergic Acid Deithylamide (LSD, Acid)
- 25 milligrams or more of a Hallucinogen (Mushrooms, Peyote)
- 1 gram or more of a Hallucinogenic Substance
- 10 ounces or more of a dangerous Depressant
- 2 pounds or more of a Depressant
- 1 ounce or more of a substance containing concentrated Cannabis
- 250 milligrams or more of Phencyclidine (PCP, Angel Dust)
- 360 milligrams or more of Methadone
- 4000 milligrams or more of Ketamine (Frequent “date rape” drug)
- 200 grams or more of a substance containing Gamma Hydroxybutyric Acid (like, but not the same as MDMA/Ecstasy)
CPCS 4th is a class C felony. Therefore, you face up to 5 ½ years in a state correctional facility with an additional 1 to 2 years of post-release supervision. Your prison time could involve CASAT or SHOCK. You could serve up to 1 year in local jail, or probation for up to 5 years. You may also be sentenced to take part in Judicial Diversion or another Drug Court program. Your driver’s license and registration may be suspended for 6 months. You may also be fined up to $15,000 or be ordered to pay restitution and other fees.
CPCS 3rd involves knowingly and unlawfully possessing any of the following with the intent to sell them:
- Any amount of any Narcotic Drug (Cocaine, Heroin);
- 1/8 ounce or more of any substance containing Methamphetamine;
- A Stimulant (Adderall, Ritalin), Hallucinogen or Hallucinogenic Substance (Mushrooms, Peyote), or Lysergic Acid Diethylamide (LSD) – if you have any prior drug conviction;
- 1 gram or more of a Stimulant;
- 1 milligram or more of Lysergic Acid Diethylamide;
- 25 milligrams or more of a Hallucinogen;
- 1 gram or more of a Hallucinogenic Substance;
CPCS 3rd also includes penalties for larger personal possession amounts including:
- 5 grams or more of a Stimulant (up for 1);
- 5 milligrams or more of Lysergic Acid Diethylamide (up from 1);
- 125 milligrams of a Hallucinogen (up from 25);
- 5 grams or more of a Hallucinogenic Substance (up from 1);
- ½ ounce or more of a substance containing a narcotic drug (up from 1/8);
- 1,250 milligrams or more of Phencyclidine (up from 250).
CPCS 3 is a class B felony. Therefore, you face up to 9 years in a state correctional facility with an additional 1 to 2 years of post-release supervision. Your prison time could involve CASAT or SHOCK. LINK You could serve up to 1 year in local jail, or probation for up to 5 years. You may also be sentenced to take part in Judicial Diversion or another Drug Court program. Your driver’s license and registration may be suspended for 6 months. You may also be fined up to $30,000 or be ordered to pay restitution and other fees.
CPCS 2nd does not contain any requirement that you intend to sell the controlled substance. It criminalizes large possession amounts as follows:
- 4 ounces or more of a substance containing a narcotic drug (up from ½ ounce);
- 2 ounces or more of a substance containing methamphetamine (up from ½ ounce contained in CPCS 4);
- 10 grams or more of a Stimulant (up from 5);
- 25 milligrams or more of Lysergic Acid Diethylamide (up from 5);
- 625 milligrams or more of a Hallucinogen (up from 125);
- 25 grams or more of a Hallucinogenic Substance (up from 5);
- 2,880 milligrams or more of Methadone (up rom 360 contained in CPCS 4).
CPCS 2nd is a class A-II felony. Therefore, you face a minimum of 3 and a maximum of 10 years in a state correctional facility with an additional 15 years of post-release supervision. Your prison time could involve CASAT or SHOCK. You could also be sentenced to lifetime probation. You may also be sentenced to take part in Judicial Diversion or another Drug Court program. Your driver’s license and registration may be suspended for 6 months. You may also be fined up to $50,000 or be ordered to pay restitution and other fees.
CPCS 1st as with CPCS 2nd has no requirements of an intent to sell, however it contains just two subdivisions at the highest weights including:
- 8 ounces or more of a substance containing a Narcotic Drug;
- 5,760 milligrams of Methadone.
CPCS 1st is a class A-I felony. Therefore, you face a minimum of 8 and a maximum of 20 years in a state correctional facility with an additional 15 years of post-release supervision. Your prison time could involve CASAT. You are ineligible for SHOCK, local jail time, probation, diversion or other drug courts. You may also be fined up to $100,000 or be ordered to pay restitution and other fees.
Timeline of a Criminal Defense Case
- Whether you just made a big mistake, or are being falsely accused, this can be a very emotional and important time in a case
- It is very important that you remain silent and not answer any questions about the case without a lawyer present
- Contact a criminal defense attorney as soon as possible
- Confirm the lawyer is an experienced criminal defense lawyer
- Meet with the lawyer who will help you understand the process of a criminal case
- If you have been arrested, critical proceedings and time frames begin immediately
- You will appear before a judge who will determine if you will be incarcerated, released on bail or supervision, or released without conditions
- If you are charged with a felony in a town, village or city court, the prosecuting agency will have six months from the date of your arrest to determine whether to present your case to a grand jury to seek an indictment or return your case to a lower court to be handled as a misdemeanor
- Discovery is the exchange of information between the governmental agency prosecuting you, you, and your attorney
- In New York State this process begins shortly after your appearance in court
- You can expect exchange of the following if it exists in your case:
- Police Reports
- Investigative Notes
- Videos / Body Camera Footage / Dash Camera Footage
- Forensic Reports
- Photographs
- Exculpatory Material (Brady)
- Impeachment Material
- You and your attorney may also be engaged in information gathering that includes:
- Freedom of Information Law (FOIL) Requests/Responses
- Additional Witness Interviews
- Expert Evaluations / Disclosures
- Motions are written applications to the court to request any of the following:
- Preclude Evidence
- Suppress Evidence
- Seek a Ruling on a Constitutional Rights Violation
- Seek Outright Dismissal of One or More Charges Based on Legal/Factual Matters
- Request Hearings
- A plea bargain is an offer from the prosecuting attorney to resolve your case
- Whether to plead guilty or not is always a choice you get to make, not your attorney
- Your attorney will meet with you, discuss the facts and the law of your case, and offer advice. A plea offer takes into consideration your charges as well as:
- Prior criminal history if any
- Life experiences
- Evidentiary Problems
- Post-Incident Actions
- Mental Health Counseling
- Substance Abuse Treatment
- Anger Management Treatment
- If you choose not to accept a plea bargain and are heading to trial, there are likely to be hearings to consider the following:
- Preclusion/Suppression of Evidence
- Admissibility of Evidence
- What Prior Criminal History/Bad Acts May Be Introduced by the Prosecutor if You Testify on Your Own Behalf
- During a hearing, there is no jury, and the judge will make factual and legal determinations regarding what evidence will be allowed at trial.
- You have the right to a trial by a fair and impartial jury or by the judge who will act as both judge and jury
- At a trial, the prosecution has the burden to prove your guilt beyond a reasonable doubt
- The judge or jury will listen to the evidence presented and the arguments by the lawyers, apply the facts to the law, and render a verdict of not guilty or guilty
- A Verdict must be unanimous
- If you are convicted at trial, or if you entered a plea bargain, there will be a sentencing date where your punishment will be imposed by the judge
- If you previously entered a plea bargain, the judge will likely impose the agreed upon sentence at that time
- In the event you are convicted, you have the right to appeal
- This is true whether you plead guilty or are convicted after trial
- However, by accepting a plea bargain, you may have waived some of your appellate rights
- It is important that your attorney file a notice of appeal on your behalf and that you discuss the appeal process with your lawyer
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