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NY Penal Law § 22028 Use of a child to commit a controlled substance offense

June 24, 2020 Federal Criminal Attorneys

NY Penal Law § 220.28: Use of a child to commit a controlled substance offense

New York has a handful of laws that interdict possessing, selling and manufacturing drugs. There also exist laws that make it illegal to commit drug crimes in places where children may observe the transaction or be placed in danger, or to involve children in any illegal drug activity. If you do so, the drug crime you commit will be considered more egregious.  As a result, you may face an additional charge, such as use of a child to commit a controlled substance offense. You would have committed the crime of use of a child to commit a controlled substance offense under New York Penal Code § 220.28 under all of the following circumstances:


  1. You are 18 years old or older
  2. You sell or attempt to unlawfully sell a controlled substance
  3. You utilize a child who is under the age of 16 years in the execution of the transaction



A certain man makes plans to deliver a small quantity of meth to his cousin by placing it in the school backpack of his 5 year old daughter. The plan was that his cousin would retrieve the meth when the 5 year old arrives at the cousin’s home to have a play date with the cousin’s 6 year old son. The 5 year old girl discovers the meth and puts a small amount of it in her mouth. She becomes violently ill and is immediately rushed to the hospital. The child’s father could be prosecuted for use of a child to commit a controlled substance offense in addition to other offenses such as endangering the welfare of a child.


Offenses that are Related

Endangering the welfare of a child: New York Penal Code § 260.10

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


Possible Defenses

Some potential defenses to a charge of use of a child to commit a controlled substance offense would involve bringing the prosecution’s evidence related to each separate element of the crime into question. If you can demonstrate, for example, that the child was not younger than 16 but was age 17 at the time of the incident, then you cannot be charged with this felony offense. Similarly, if you yourself were younger than 18 years of age at the time, the prosecution would be forced to dismiss the charge.


The Sentence

Since the use of a child to commit a controlled substance offense is a class E felony, if convicted, you could face a maximum possible prison sentence of 4 years. The sentence you receive could also include a fine on top of  a 5 year probation term. 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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