Drug Possession Laws New York

Thanks for visiting Spodek Law Group – managed by Todd Spodek, a second-generation law firm with over 40 years of combined experience defending drug cases in New York. Drug possession in New York operates on a graduated scale under Penal Law Article 220, where weight determines everything. Possess 500 milligrams of a controlled substance, that’s seventh degree – Class A misdemeanor, up to 364 days. Possess eight ounces, that’s first degree – Class A-I felony, 15-25 years minimum, same as murder. The difference between facing a year or facing decades has nothing to do with whether you’re a user, a dealer, or someone who made one catastrophically bad decision. It’s just weight.

Prosecutors don’t stop at weight – they infer intent to sell from circumstantial evidence. You had your drugs in multiple baggies? Intent to distribute. You had $400 cash and a scale? Dealer. You had more than what prosecutors claim is “personal use”? Must be selling. These inferences transform simple possession into possession with intent to sell, which means 10+ years of additional prison exposure for the same drugs. At Spodek Law Group – we challenge these inferences because the line between being called a user versus a dealer is often arbitrary, and it can mean everything.

Half a Gram Separates Misdemeanor From Felony

Seventh degree possession: any amount of a controlled substance. Class A misdemeanor, up to 364 days. This is simple possession – you had drugs for personal use, small quantity, no evidence of dealing. First offense often gets diverted to treatment programs if you have no record.

Fifth degree: possession with intent to sell, or possessing 500 milligrams or more. Class D felony, up to 7 years. Notice the jump – from 364 days to 7 years based solely on crossing the 500 milligram threshold. Half a gram separates misdemeanor from felony. Someone caught with personal-use quantities they bought in bulk to save money now faces the same charge as someone actively dealing.

First degree: possessing eight ounces or more of a narcotic with intent to sell. Class A-I felony, 15-25 years minimum. Same classification as intentional murder. You’re a low-level dealer who bought a large quantity to distribute at street level – you face the same mandatory minimum as someone who committed premeditated homicide.

How Prosecutors “Prove” You’re a Dealer

Simple possession becomes possession with intent to sell when prosecutors can show you planned to distribute rather than use the drugs personally. They prove intent circumstantially. Drugs divided into multiple small baggies suggests individual sales packages rather than personal use. Scales, cutting agents, packaging materials indicate preparation for distribution. Large amounts of small bills suggest drug sale proceeds. Text messages about “meeting up” or “you got that” get interpreted as drug transaction arrangements. And quantity – any amount exceeding what prosecutors claim is reasonable personal use.

Each of these has innocent explanations. You bought in bulk and divided into baggies to track daily use. The scale is for cooking. The cash is from your job that pays tips. The texts are about borrowing money. You had a large quantity because you don’t want to re-up frequently. But juries hear “baggies, scale, cash, texts” and infer dealing even when you’re genuinely just a user.

The “personal use” threshold is particularly manipulative. How much cocaine is reasonable for personal use? Prosecutors claim anything over a few grams must be for sale – no user needs more than that. Defense attorneys counter that users often buy larger quantities to get better prices or avoid frequent dangerous transactions. There’s no objective standard, so prosecutors define personal use as whatever amount supports their charging decision.

Marijuana: Legal but Still Criminalized

New York legalized adult recreational marijuana possession in 2021. You can possess up to three ounces of cannabis or 24 grams of concentrated cannabis legally if you’re 21+. But possession of larger amounts remains criminal, and unlicensed sale remains criminal at all amounts.

Public use restrictions criminalize marijuana in ways alcohol isn’t criminalized. You can drink alcohol in restaurants, bars, outdoor events with permits. You can’t smoke marijuana in those same contexts – only private residences and designated consumption areas. Public marijuana use is a violation, but it still creates criminal records and pretexts for police stops.

Driving while ability impaired by marijuana remains criminal. Unlike alcohol with its 0.08% BAC threshold creating an objective standard, marijuana impairment has no agreed-upon testing threshold. Prosecutors rely on officer observations and blood tests showing THC presence – but THC remains in your system long after impairment ends, so a positive test doesn’t prove you were impaired while driving.

Unlicensed Sale Prosecutions Continue

Selling marijuana without a state license remains criminal regardless of legalization. Police still arrest people for selling marijuana, prosecutors still charge felonies, people still go to prison. The only difference is now there’s a legal market operating alongside the still-criminalized unlicensed market. Who gets licensed to sell legally? Not the people who were selling before legalization. License fees, regulatory compliance costs, zoning restrictions – these create barriers that exclude communities most harmed by marijuana prohibition from participating in the legal market. Meanwhile those same communities continue to be policed for unlicensed sales while wealthy investors obtain licenses and profit legally from the same conduct.

Most Drug Cases Begin With Questionable Searches

Police stop you for minor traffic violation, claim they smell marijuana, search your car without warrant, find drugs. Or police approach you on the street claiming “reasonable suspicion,” pat you down for weapons, feel something they claim could be drugs, search your pockets and find pills. These searches violate the Fourth Amendment when police lack probable cause or when their claimed justifications are pretextual, but courts routinely uphold them.

The “plain smell” doctrine is particularly abused. Police claim they smelled marijuana, which gives them probable cause to search. But smell is subjective and unverifiable – you can’t disprove that an officer smelled what they claim to have smelled. This makes “I smelled marijuana” an all-purpose justification for searches that might otherwise require warrants. Even after marijuana legalization, police still use marijuana odor as probable cause by claiming they smelled “unburnt marijuana” suggesting quantity exceeding legal possession limits.

Defense attorneys move to suppress evidence from illegal searches, but judges defer heavily to police testimony. If the officer says they had reasonable suspicion or probable cause, judges accept it unless you can prove they’re lying – which is nearly impossible when the search occurred in private with no witnesses.

Diversion Programs Aren’t Lenient

New York offers various diversion programs for drug offenders: DTAP, judicial diversion under CPL 216, TASC. These programs allow defendants to complete treatment instead of serving prison sentences, with charges dismissed or reduced upon successful completion. First-time offenders with no violence history usually qualify. But diversion programs aren’t lenient – they’re alternative punishment. You spend 12-24 months in intensive outpatient or residential treatment, submit to frequent drug testing, attend counseling sessions multiple times per week, comply with strict conditions like employment requirements, curfews, no association with drug users. If you violate program conditions, you get terminated and face the original prison sentence.

Programs have high failure rates because staying completely drug-free while dealing with addiction, employment instability, housing insecurity, and other life stressors is extremely difficult. Defendants who would have served 6 months on a straight plea sometimes end up serving years in treatment programs plus prison time after they’re terminated for violations. Some clients are better off taking a shorter prison sentence than risking program failure that results in longer incarceration. This sounds counterintuitive – prison is worse than treatment, right? – but treatment program violations often result in harsher sentences than the original plea offer, because prosecutors and judges view program failure as additional bad conduct warranting increased punishment.

Drug possession laws in New York create sentencing cliffs based on arbitrary weight thresholds. Prosecutors infer intent to sell from baggies, scales, cash, and amounts they claim exceed personal use. Marijuana is legal for adults but public use and unlicensed sale remain criminal. Fourth Amendment violations pervade drug arrests through pretextual stops and “plain smell” searches. We’re available 24/7. Call us.