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NY Penal Law § 22039 Criminal sale of a controlled substance in the third degree

June 24, 2020 Federal Criminal Attorneys

NY Penal Law § 220.39: Criminal sale of a controlled substance in the third degree

There are a handful of offenses prohibiting selling drugs in the New York Penal Code. The majority of them require that you sell or attempt to sell a minimum quantity of specific types of drugs in order to be prosecuted. Under New York Penal Code § 220.39, you will have committed the crime of criminal sale of a controlled substance in the third degree if you knowingly and unlawfully sell illicit drugs as follows:


  • A narcotic drug,
  • A minimum of 1 gram of a stimulant,
  • A minimum of 1 milligram of Lysergic acid diethylamide,
  • A minimum of  25 milligrams of a hallucinogen,
  • A minimum of  1 grams of a hallucinogenic, or
  • A minimum of  1/8 of an ounce of Methadone.


Furthermore, you could be under prosecution for criminal sale of a controlled substance in the third degree if you sell narcotics to someone who is younger than 21 years of age, or you sell a stimulant, hallucinogenic substance, hallucinogen, or lysergic acid diethylamide and you previously have been convicted of a drug offense.


For Example

The police notice two men exit a bar that is located in an area that is known for frequent drug activity. One man hands the other what appears to be cash and receives in exchange a small pouch. On the basis of their suspicion that the two men had just completed a drug transaction, the police stop and frisk both men. The packet they observed was found to contain cocaine. Depending on the quantity of cocaine in the packet, the man who sold the cocaine could potentially be prosecuted for criminal sale of a controlled substance.


Offenses that are Related

Criminal possession of a controlled substance in the third degree: New York Penal Law § 220.16

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


Possible Defenses

If you get arrested for third 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 third 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

Criminal sale of a controlled substance in the third degree is categorized as a class B felony. What this means to you is that if you are convicted, you could be looking at up to 25 years behind bars. If there are no prior felony convictions on your record, then the minimum prison sentence you can get is 5 years.  On the other hand, if you do have at least one prior conviction, the minimum prison sentence will be 10 years. On top of this, you may be ordered to pay a fine of up to $30,000.



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