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NYC Fifth Degree Controlled Substance Possession Lawyers

January 2, 2020 Federal Criminal Attorneys

Confusion exists in New York state about the ramifications of possession of a controlled substance. Persons charged with a felony may find themselves shocked to see such severe charges levied at them. Often, people believe that recreational drugs won’t get them into as much trouble. They do not understand how the law works or what the statutes say. For example, depending on the amount a person possesses, the charges could be brought up as misdemeanors or as felonies. Other factors can lead to possession rising to the felony level, and not all felonies are the same, either. Felonies rank in degrees with crimes becoming more severe as the numerical order decreases.

Sale of a Controlled Substance

Under the law, a person may face charges of Criminal Possession of a Controlled Substance in the Fifth Degree when he/she possesses a drug intending to sell; or, he/she possesses a specific amount of a particular drug. If the intent is “to sell,” then the amount of the drug does not matter.

Also, defendants must be aware that “to sell” does not only refer to the exchange of money, goods, or services for drugs. “Sell” also includes giving someone drugs or disposing of drugs to another person. A person can face this charge even when offering or agreeing to do any of the definitions of “sell.”

Please see “PEN § 220.00 Controlled substances; definitions” for more information.

Possession of a Controlled Substance: Fifth Degree

Criminal Possession of a Controlled Substance in the Fifth Degree is the first felony level of drug possession. A Fifth Degree Felony represents a Class D felony. The law defines the circumstances of possession definitively, so there is no ambiguity about the statute. Further clarification about Fifth Degree Possession appears in the New York Penal Law § 220.06.

The Amounts Related to Fifth Degree Charges

New York state law also defines specific felony possession charges based on the amount of a particular drug. One controlled substance may be a felony at a lower amount than what is the case with another drug. Generally, the amount required for the first felony level is 1/2 of an ounce or more. The New York Penal Code lists the following drugs and their corresponding amounts as Class D/Fifth Degree felonies:

  • PCP – 50 mg and above.
  • Concentrated cannabis – 1/4 ounce or more.
  • Cocaine – 500 mg or more.
  • GHB – 28 g or more.
  • Ketamine – 1000 mg or more.

A person can also be charged with a Class D felony/Fifth Degree Possession if they possess ketamine and have a previous conviction for ketamine possession or the attempt to possess ketamine. The amount does not matter when prior convictions come into play.

Understanding Possession of a Controlled Substance

The law details the definitions of what is a controlled substance and what constitutes possession. Generally, a controlled substance refers to an illegal drug or a drug that is illegal to possess without a prescription. The federal government maintained a scheduled list of controlled substances.

Definitive elements exist with the legal definition of “possession.” In general terms, a person must knowingly and unlawfully maintain physical possession or dominion or control over tangible property. The statutes go into further detail about possession and corresponding elements.

If a person has a controlled drug in his/her shirt pocket, this will likely constitute possession. Possession may also refer to someone who knowingly has controlled substances in the basement of his/her home even though he/she was in the living room when arrested, as he/she maintains control or dominion over the property in the house. However, if the controlled substance requires a prescription, and the person has a prescription for the drug in the prescribed amount, then the possession is lawful.

Be aware the above example is a broad illustration of examples of possession of a controlled substance and is not a substitute for legal advice.

Defenses for Criminal Possession of a Controlled Substance in the Fifth Degree

The defenses for criminal possession of drugs can range. An attorney may prove that the person charged did not possess any drugs, or he/she legally possessed them. Under certain circumstances, the attorney could argue entrapment or even bring up the statute of limitations — anyone charged with possession benefits from discussing the specifics of a case with legal counsel.

An attorney could approach the charges in many ways, including going to trial and pleading not guilty, pleading guilty to lesser charges, and so on. An attorney can also argue for preferable sentencing if found guilty.

Ultimately, anyone facing misdemeanor or felony charges may wish to seek out qualified counsel to discuss representation and defense strategies.

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