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NY Penal Law § 220.34: Criminal sale of a controlled substance in the fourth degree

June 24, 2020 Federal Criminal Attorneys

NY Penal Law § 220.34: Criminal sale of a controlled substance in the fourth degree

Under New York Penal Code § 220.34, you will have committed the drug offense of criminal sale of a controlled substance in the fourth degree if you knowingly and unlawfully sell a narcotic preparation, a depressant, phencyclidine, cannabis, or methadone. This statute requires that you possess a specified quantity of a listed drug in order to be prosecuted under the criminal sale of a controlled substance in the fourth degree statute. Even if you sell less than the specified quantities, you could still be prosecuted under criminal sale of a controlled substance in the fifth degree. On top of that, if you sell a controlled substance on the grounds of a school, child day care center, education facility, or on a school bus, you will have violated this law regardless of the quantity of the drug involved in the transaction.


An Example

The police observe a man handing a small packet over to a woman in exchange for cash. Since this transaction is taking  place in an area known for frequent drug activity, the police officer has reason to believe that the man just sold illicit narcotics to the woman. When they stop and search the man, the officer finds several glassine envelopes filled with what appears to be heroin. The man could be facing prosecution for criminal sale of a controlled substance based on the police officer’s observation and the evidence found on the man’s person in the search.


Offenses that are Related

Criminal sale of a controlled substance in or near school grounds: New York Penal Code § 220.44

Criminal possession of a controlled substance in the fourth degree: New York Penal Law § 220.09


Possible Defenses

If you get arrested for fourth degree criminal sale of a controlled substance, you could challenge this charge on the basis of the quantity of drugs found in the occurrence. If the amount of the drug is less than what is specified for that drug in the statute, then a charge of criminal sale of a controlled substance in the fourth degree would become invalid.


An alternative defense that could benefit you greatly is if you could  successfully challenge the method the police used to discover the drugs. Pursuant to the law, in order to conduct a search, whether it is a search of your car, apartment or office, the police must demonstrate that they had probable cause to do so. If it is determined that the search was unlawful, anything which the search produced, including illicit drugs, would be inadmissible in court and your case would likely be dismissed.


The Sentence

Due to the fact that criminal sale of a controlled substance in the fourth degree is grouped as a Class C felony, if you are convicted, your possible sentence will be as many as 15 years in prison. The minimum prison sentence that the judge would be able to give you is either 3 1/2 or 7 years. This minimum is dependent upon whether or not you have a prior felony conviction. You would also be ordered to pay a fine of up to $15,000.



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