Buffalo Criminal Defense Attorney For Controlled Substance Offenses

The criminal defense attorneys at HoganWillig have successfully represented numerous defendants charged with narcotics-related offenses. Our attorneys have forged a reputation for providing experienced and aggressive representation of clients facing all types of drug charges. The sale of a substance or compound listed on New York State’s Controlled Substance Schedules is a felony, though the circumstances of the case will determine the severity of the penalty.

Changes to New York drug laws in 2009 enforced that lower-level drug crimes no longer carry the excessive minimum sentences that had been in place for decades. Skilled criminal defense attorneys can now argue for alternate sentences that can circumvent jail time or significantly decrease the sentence.

Criminal Sale of a Controlled Substance in the Fifth Degree

The quantity and type of drug sold will determine the degree to which the crime is charged. However, Criminal Sale of a Controlled Substance in the Fifth Degree, Penal Law Section 220.31, requires only that a person “knowingly and unlawfully sells a controlled substance.” Under this section of the law, the sale of any quantity or type of substance listed on any of the NYS Controlled Substance Schedules is a class D felony.

Criminal Sale of a Controlled Substance in the Fourth Degree

A person is guilty of criminal sale of a controlled substance in the fourth degree when he knowingly and unlawfully sells a narcotic preparation, a depressant, cannabis, phencyclidine, or methadone. This statute requires that you possess a specified amount of a listed drug to face prosecution for the sale of a controlled substance in the fourth degree. Additionally, if you sell a controlled substance on school grounds, in an education facility, childcare center, or on a school bus, you will have violated this statute no matter the amount of substance involved.

A person is guilty of criminal sale of a controlled substance in the fourth degree when he knowingly and unlawfully sells:

  • a narcotic preparation; or
  • a dangerous depressant or a depressant and the dangerous depressant weighs ten ounces or more, or the depressant weighs two pounds or more; or
  • concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of the public health law; or
  • phencyclidine and the phencyclidine weigh fifty milligrams or more; or
  • methadone; or
  • any amount of phencyclidine and has previously been convicted of an offense defined in this article or the attempt or conspiracy to commit any such offense; or
  • Ketamine and said ketamine weighs four thousand milligrams or more.
  • a controlled substance in violation of § 220.31 of this article, when such sale takes place upon the grounds of a child daycare or educational facility under the circumstances evincing knowledge by the defendant that such sale is taking place upon such grounds. For the purposes of this subdivision, a rebuttable presumption shall be established that a person has knowledge that they are within the grounds of a child daycare or educational facility when notice is conspicuously posted of the presence or proximity of such facility; or
  • one or more preparations, compounds, mixtures, or substances containing gamma-hydroxybutyric acid, as defined in paragraph four of subdivision (e) of schedule I of section thirty-three hundred six of the public health law, and said preparations, compounds, mixtures, or substances are of an aggregate weight of twenty-eight grams or more.

Criminal Sale of a Controlled Substance in the Third Degree

You will have committed the crime of criminal sale of a controlled substance in the third degree under New York Penal Code § 220.39 if you knowingly and unlawfully sell drugs as follows:

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

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

Criminal Sale of a Controlled Substance in the Second Degree

You will have committed the crime of criminal sale of a controlled substance in the second degree under New York Penal Code § 220.41 if you unlawfully possess drugs as follows:

  • Narcotics weighing at least .5 ounces,
  • Methamphetamine weighing at least .5 ounces,
  • A stimulant weighing at least 5 grams,
  • Lysergic acid diethylamide weighing at 5 milligrams,
  • A hallucinogen weighing at least 25 milligrams,
  • A hallucinogenic weighing at least 5 grams, or
  • Methadone weighing at least 360 milligrams

Criminal Sale of a Controlled Substance in the First Degree

A person is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells:

  • one or more preparations, compounds, mixtures, or substances containing a narcotic drug, and the preparations, compounds, mixtures, or substances are of an aggregate weight of two ounces or more; or
  • methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

Criminal sale of a controlled substance in the first degree is a class A-I felony.


Manufacture of Illegal Drugs

Drug manufacturing is one of the most serious drug crimes that people might face in New York. Drug manufacturing is being involved in any step in the drug production process. Similar to drug trafficking, Prosecutors are required to prove that people accused of manufacturing drugs possess the precursors and substances and intend to manufacture illegal drugs. One common defense against drug manufacturing is that the defendant is a permit or license holder authorized to possess certain precursor chemicals. Businesses, for example, that use industrial chemicals common in drug products may be protected from a drug manufacturing charge because they possess permits allowing them to purchase and use such chemicals.

Those facing drug manufacturing charges may benefit from hiring an experienced New York criminal defense attorney as soon as possible. An attorney can identify issues with how police investigated the case and tailor a defense to the charges specific to the circumstances and facts of what happened. This may help the defendant secure a better resolution to the criminal charges against them.

Offenses Involving Marijuana

Both recreational and medical marijuana is legal in New York. The state passed cannabis reform with the signing of the Marihuana Regulation and Taxation Act on March 31, 2021. Adults 21 and over are allowed to possess up to three ounces of cannabis or up to 24 grams of concentrate. Under the Compassionate Care Act, registered patients are legally allowed to possess a 60-day supply at any given time. The quantity of a patient’s 60-day supply is based on the recommendations received from their licensed physician.

The purchasing limit matches possession; those of legal age may purchase up to 3 ounces of flower or 24 grams of concentrate. However, recreational dispensaries are not currently open and are expected in 2022.

Recreational dispensaries in New York permit the sale of:

  • Flower
  • Concentrates
  • Edibles
  • Topicals and
  • other cannabis preparations not yet defined.

For medical marijuana, dispensaries cannot provide a patient with more than a 60-day supply.

Despite sentencing reform and efforts in New York to decriminalize or legalize the recreational use of marijuana, being accused of possessing large quantities of or selling marijuana or a controlled substance remains both illegal and seriously punishable in New York. Our office has, on many occasions, prevented some overreaching charges for marijuana-related offenses in New York. Those charged with such an offense should seek the counsel of a Criminal Defense attorney to see how their sentence can be avoided or reduced.

Additionally, it should be noted that adults convicted of the minor criminal offense of marijuana possession prior to the enactment of the MRTA can seek to expunge their record or reduce their record. Expunge or Reduce Your Conviction for Certain Marijuana-Related Convictions: HoganWillig Blog

Possession of a Controlled Substance

New York, like other states, regulates the possession of controlled dangerous substances (CDS). New York classifies not only well-known drugs like marijuana, heroin, and cocaine as CDS but also the compounds used to manufacture them. The severity of the charge has to do with the amount of a CDS a person is in possession of and whether they had the intent to sell it.

Criminal Possession of a Controlled Substance in the Seventh Degree

A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance.  Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

Criminal Possession of a Controlled Substance in the Fifth Degree

A person is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses:

  •  a controlled substance with intent to sell it; or
  • one or more preparations, compounds, mixtures, or substances containing a narcotic preparation and said preparations, compounds, mixtures, or substances are of an aggregate weight of one-half ounce or more; or
  • phencyclidine and said phencyclidine weighs fifty milligrams or more; or
  • one or more preparations, compounds, mixtures, or substances containing concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of the public health law, and said preparations, compounds, mixtures, or substances are of an aggregate weight of one-fourth ounce or more; or
  • cocaine and said cocaine weighs five hundred milligrams or more.
  • ketamine and said ketamine weighs more than one thousand milligrams; or
  • ketamine and has previously been convicted of possession or the attempt to commit possession of ketamine in any amount; or
  • one or more preparations, compounds, mixtures, or substances containing gamma-hydroxybutyric acid, as defined in paragraph four of subdivision (e) of schedule I of section thirty-three hundred six of the public health law, and said preparations, compounds, mixtures, or substances are of an aggregate weight of twenty-eight grams or more.

 

Criminal possession of a controlled substance in the fifth degree is a class D felony.

Criminal Possession of a Controlled Substance in the Fourth Degree

  • one or more preparations, compounds, mixtures, or substances containing a narcotic drug and said preparations, compounds, mixtures, or substances are of an aggregate weight of a one-eighth ounce or more; or
  • one or more preparations, compounds, mixtures, or substances containing methamphetamine, its salts, isomers, or salts of isomers, and said preparations, compounds, mixtures, or substances are of an aggregate weight of one-half ounce or more; or
  • one or more preparations, compounds, mixtures, or substances containing a narcotic preparation and said preparations, compounds, mixtures, or substances are of an aggregate weight of two ounces or more; or
  •  a stimulant and said stimulant weighs one gram or more; or
  • lysergic acid diethylamide and said lysergic acid diethylamide weighs one milligram or more; or
  •  a hallucinogen and said hallucinogen weighs twenty-five milligrams or more; or
  • a hallucinogenic substance and said hallucinogenic substance weighs one gram or more; or
  • a dangerous depressant, and such dangerous depressant weighs ten ounces or more; or
  • a depressant and such depressant weighs two pounds or more; or
  • one or more preparations, compounds, mixtures, or substances containing concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of the public health law, and said preparations, compounds, mixtures, or substances are of an aggregate weight of one ounce or more; or
  •  phencyclidine and said phencyclidine weighs two hundred fifty milligrams or more; or
  • methadone and said methadone weighs three hundred sixty milligrams or more; or
  • phencyclidine and said phencyclidine weighs fifty milligrams or more with intent to sell it and has previously been convicted of an offense defined in this article or the attempt or conspiracy to commit any such offense; or
  • ketamine and said ketamine weighs four thousand milligrams or more; or
  • one or more preparations, compounds, mixtures, or substances containing gamma-hydroxybutyric acid, as defined in paragraph four of subdivision (e) of schedule I of section thirty-three hundred six of the public health law, and said preparations, compounds, mixtures, or substances are of an aggregate weight of two hundred grams or more.  

Criminal possession of a controlled substance in the fourth degree is a class C felony.

Criminal Possession of a Controlled Substance in the Third Degree

A person is guilty of criminal possession of a controlled substance in the third degree when he or she knowingly and unlawfully possesses:

  •  a narcotic drug with intent to sell it; or
  •  a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide, with intent to sell it and has previously been convicted of an offense defined in article two hundred twenty or the attempt or conspiracy to commit any such offense; or
  • a stimulant with intent to sell it and said stimulant weighs one gram or more; or
  • lysergic acid diethylamide with intent to sell it and said lysergic acid diethylamide weighs one milligram or more; or
  • a hallucinogen with intent to sell it and said hallucinogen weighs twenty-five milligrams or more; or
  •  a hallucinogenic substance with intent to sell it and said hallucinogenic substance weighs one gram or more; or
  • one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers with intent to sell it and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more; or
  • a stimulant and said stimulant weighs five grams or more; or
  •  lysergic acid diethylamide and said lysergic acid diethylamide weighs five milligrams or more; or
  • a hallucinogen and said hallucinogen weighs one hundred twenty-five milligrams or more; or
  • a hallucinogenic substance and said hallucinogenic substance weighs five grams or more; or
  • one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more; or
  • phencyclidine and said phencyclidine weighs one thousand two hundred fifty milligrams or more.

Criminal possession of a controlled substance in the third degree is a class B felony.

Criminal Possession of a Controlled Substance in the Second Degree

A person is guilty of criminal possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses:

  •  one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more; or
  •  one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and said preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more; or
  • a stimulant and said stimulant weighs ten grams or more; or
  • lysergic acid diethylamide and said lysergic acid diethylamide weighs twenty-five milligrams or more; or
  • a hallucinogen and said hallucinogen weighs six hundred twenty-five milligrams or more; or
  •  a hallucinogenic substance and said hallucinogenic substance weighs twenty-five grams or more; or
  •  methadone and said methadone weighs two thousand eight hundred eighty milligrams or more.

Criminal possession of a controlled substance in the second degree is a class A-II felony.

Criminal Possession of a Controlled Substance in the First Degree

A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses:

  • one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more; or
  • methadone and said methadone weighs five thousand seven hundred sixty milligrams or more.

Criminal possession of a controlled substance in the first degree is a class A-I felony.

New York’s drug laws are complex and can carry heavy penalties. Therefore, it is critical to hire the right criminal defense attorney who specializes in New York drug laws and can not only explain the laws but can evaluate the evidence in your case and advocate on your behalf during plea negotiations or trial.