15 Mar 21

New York Penal Code 220.28: Use of a child to commit a controlled substance offense

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Last Updated on: 17th August 2023, 07:16 pm

Drugs and Children: Understanding New York Penal Code 220.28

Like many other places in the country, drugs are a serious problem in New York. With all the manpower and resources spent on trying to control the drug problem, the court system is equally tied up with drug cases. Prosecutors and Assistant District Attorneys devote much of their time pursuing charges against people who distribute drugs. When children are involved, the crime can get even more serious with additional charges. New York has laws in place to protect children from controlled substances and their distribution. It is important to understand what New York penal code 220.28 states in regards to children involved with drug traffic.

Penal Code 220.28 Specifics

A person can be charged with a violation of this code when they knowingly use a child during the sale or attempted sale of a controlled substance. There are 3 aspects to this charge:

  1. The adult is over the age of 18
  2. The child involved is under the age of 16
  3. There is a sell or attempt to sell controlled substances

This includes hiding the controlled substance on the child or in the child’s possessions. It also includes forcing or coercing a child to distribute or aid in the distribution of the drugs. A child is defined as anyone under the age 16. This is defined as a class “E” felony.

The term “sale” is very loosely defined. It doesn’t have to mean an exchange of money or goods. It can include just giving the drugs to someone. It can also include the offer to sell or give drugs without anything exchanging hands. When children get involved, it puts them at a greater danger in addition to teaching them illegal drug trade skills.

While the charge itself is not as serious as some of the other drug related charges, it rarely stands alone. Chances are that there will be additional charges such as endangering the welfare of a minor and drug distribution charges. All of these charges added together could add up to serious jail time and fines.

Examples of a Penal Code 220.28 crime

The child doesn’t have to physically hand over the controlled substances for this crime to be charged. For example, the drugs were placed in the child’s backpack and the child unknowingly delivers them to the school or an after-school destination where the intended recipient can retrieve them. Another example would be if the adult hid controlled substances in a toy the child was carrying onto an airplane. This would constitute a crime under Penal Code 220.28 in addition to other potential charges.

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Defenses Available

A good defense attorney will look at all the details of the case to ensure that each element is present. For example, if the child is over the age of 16 or the person charged is under the age of 18, this charge would have to be dropped. If the defense could prove that the adult involved did not know that there were illegal drugs involved, that could also lead to a dismissal. Similarly, the defense attorney will look at each element of evidence against the adult to ensure that it is accurate and not misleading.


When a child is involved with the distribution of narcotics, there is an additional charge under Penal Code 220.28, and the consequences can be quite severe in the New York area. It is critically important that you contact an experienced New York City criminal attorney as soon as possible to give yourself the best defense possible and a fighting chance at a positive outcome.