220.28 Use of a child to commit a controlled substance offense

New York has a number of controlled substance offenses that fit a variety of circumstances. One of the goals of New York’s substance abuse laws is to prevent young people from becoming drug users and abusers. Because of that goal, one of the drug crimes in New York is using a child to commit a controlled substance offense. A violation is a class E felony.

Elements of the Offense

Crimes have different parts called elements. These are all of the different things that the state has to prove in order to convict you of an offense. It’s not enough for the state to prove that you’re guilty of some of the elements of the charges against you. Instead, they have to show that you did everything in order to be in violation of the law.

Using a child to commit a controlled substance is an offense that only an adult can commit. The first element of the crime is that the person who commits it must be 18 years old or older at the time of the offense. Then, you must sell or try to sell a controlled substance. You must use the child to try to make the sale.

When you’re faced with this charge, it’s important to carefully review the definitions of what it means to use the child in the sale. The law defines this as using the child to hide the controlled substance on their body. It can also mean telling or otherwise ordering the child to make the sale or help with it. The child must be less than 16 years old in order to count as a child for the purposes of this subsection.

As the law is written, it may not be enough to simply have the child present at the transaction. It’s also not enough to be present while a child sells drugs. The law also has exceptions for age. If one of you is 17 years old, the law may not apply. It’s important to pour through the details of the allegations against you and compare them to the exact definitions of the offense.

Other Defenses

In addition to defending the case on the grounds that law enforcement can’t prove one or more of the elements against you, there are other defenses that you may want to explore in your case. The New York constitution prevents law enforcement from getting a warrant without probable cause. While there are some circumstances where they can search without a warrant, you still have a right to be free from unreasonable interference from the police in your daily life. If they don’t have a reasonable, lawful grounds for the search and seizure in your case, the result may be that they can’t present certain evidence to the court.

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You may also raise issues of mistake or accident, chain of evidence issues or a lack of knowledge about what you were doing. If you take your case to trial, you have the right to call and question witnesses. You also have the right to testify on your own behalf.

Legal Scenario: What Would You Do?

Scenario

A mother discovered that her ex-boyfriend had been paying her 15-year-old son to deliver small packages of cocaine to buyers in the neighborhood. She is now terrified that she could also face charges because the activity happened while her son was in her custody.

Can I be charged under New York Penal Law 220.28 even though I didn't know my ex was using my son to deliver drugs?

Attorney's Answer

Under New York Penal Law 220.28, a person commits the offense of using a child to commit a controlled substance crime when they knowingly use a person under 16 years old to further a drug transaction. The prosecution must prove that the adult intentionally involved the minor in the controlled substance offense, so lack of knowledge is a valid defense. However, if prosecutors can show that you were aware of or willfully blind to the arrangement, you could face class E felony charges carrying up to four years in prison. You should retain a criminal defense attorney immediately to protect your rights and build a defense before any statements are made to law enforcement.

This is general information only. Contact us for advice specific to your situation.

Plea Offers and Drug Court

The state couldn’t possibly conduct trials for all of the people that they accuse of committing crimes. They have to have a plea bargain system. You may be able to negotiate a non-trial resolution to a plea offer that’s acceptable to you. In the case of the offense of using a child to commit a controlled substance offense, you may be able to arrange a plea bargain to a misdemeanor offense. You may also arrange for participation in a drug court program in exchange for a conditional plea to a reduced charge.