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NY Penal Law § 22006 Criminal possession of a controlled substance in the fifth degree

June 24, 2020 Federal Criminal Attorneys

NY Penal Law § 220.06: Criminal possession of a controlled substance in the fifth degree

Criminal possession of a controlled substance in the fifth degree is one of a handful of drug possession charges listed in the New York Penal Code. Like many of the drug possession charges, the fifth degree criminal possession charge depends on you possessing a certain minimum quantity of a particular type of narcotic. The quantity required varies by drug. Under New York Penal Code § 220.06, the prohibited drugs include:

  • A narcotic preparation,  
  • Phencyclidine,  
  • Cannabis,  
  • Cocaine,  
  • Ketamine, or
  • a preparation containing gamma hydroxybutyric acid. 

 

The only way you can be successfully prosecuted for this offense is if you are discovered to be in possession of one of the above  listed drugs in the amount required by the statute for that particular drug. Additionally, if you are found with any drug that is a controlled substance in any amount and your intent to sell it can be proven by a prosecutor, you could be convicted under this statute.

 

An Example

You are a passenger in your friend’s car. The friend who is driving runs through a red light and the police immediately pull your friend over. It is discovered that your friend’s driver’s license is suspended. The police then perform a pat down search of your friend and in the process, they find that she has a vial of cocaine in her pocket. Shethen gets arrested for criminal possession of a controlled substance. While your friend could certainly be prosecuted for this offense, it would be much more difficult for you to also be prosecuted, as the drugs were found on your friend’s person and not in the car or on your person.

 

Offenses that are Related

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

Criminal sale of a controlled substance to a child: New York Penal Law § 220.48

Criminally possessing a hypodermic instrument: New York Penal Code § 220.45

 

Possible Defenses

If you get arrested for criminal possession of a controlled substance in the fifth degree, you could defend yourself by challenging the method the police used to find the narcotics. New York law requires that police must be able to demonstrate that they had probable cause before they can conduct a search. In other words, they must have a valid reason to suspect that you have committed a crime, or they must have a search warrant. the police, For example, may not lawfully pull you over if you are not violating any traffic laws and there is no other reason to suspect that you have committed a crime. If they do so and they search you and your car and find drugs in your car or on your person, the prosecutor would have a rather tough time moving ahead with the case. In fact, there is a good chance that the prosecutor would end up dismissing the charges.

 

Sentence

Since criminal possession of a controlled substance in the fifth degree is a Class D felony, if you are convicted your possible sentence will be as much as 7 years in prison. For the purpose of determining your sentence, the judge will take several factors into consideration.  These factors include the crime committed, the details of the crime, your criminal history and your personal background. If you are a first time offender, then your sentence will be a lot less severe than if you have a criminal history.

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