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 several drug possession charges in the New York Penal Code. Like most drug possession charges the fifth degree criminal possession charge depends on you possessing a certain minimum amount of a particular type of drug. The amount 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. You can only be prosecuted for this offense if you are found in possession of one of the listed drugs in the amount required by the statute for that particular drug. In addition, if you are found with any drug that is a controlled substance in any amount and you have the intent to sell it, you could be prosecuted under this statute.

You are the passenger in a friend's car. The friend runs through a red light and is immediately pulled over by the police. It turns out that your friend's license is suspended. The police do a pat down search of your friend and find that she has a vial of cocaine in her pocket. She is arrested for criminal possession of a controlled substance. While your friend could be prosecuted for this crime, it would be more difficult for you to be prosecuted as the drugs were found on your friend's person and not in the car or on you.

1. Criminal sale of a controlled substance in the fourth degree: New York Penal Law § 220.34
2. Criminally possessing a hypodermic instrument: New York Penal Code § 220.45
3. Criminal sale of a controlled substance to a child: New York Penal Law § 220.48

If you are arrested for criminal possession of a controlled substance in the fifth degree you could challenge the method the police used to find the drugs. New York law requires that police must have probable cause before they can conduct a search. This means that they must have reason to suspect that you have committed a crime or they must have a search warrant. For example, the police may not lawfully pull you over if you are not breaking any traffic laws and there is no other reason to suspect that you committed a crime. If they do so and find drugs in your car or on your person, the prosecutor would have a difficult time moving forward with the case. There is a good chance that the prosecutor would end up dismissing the charges.

Because criminal possession of a controlled substance in the fifth degree is a Class D felony if you are convicted your possible sentence will be up to 7 years in prison. You actual sentence will depend on a number of factors including your prior criminal history. If you have been previously convicted of a felony your sentence will be longer than if this is your first offense.

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

1. a controlled substance with intent to sell it; or

2. 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

3. phencyclidine and said phencyclidine weighs fifty milligrams or more; or

4. 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

5. cocaine and said cocaine weighs five hundred milligrams or more.

6. ketamine and said ketamine weighs more than one thousand milligrams; or

7. ketamine and has previously been convicted of possession or the attempt to commit possession of ketamine in any amount; or

8. 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.

If you are convicted of possessing heroin, cocaine, or any other illegal drug you could be sentenced to prison for several years. Penalties for controlled substance crimes tend to be heavy, involving both prison time and substantial fines. Because of these potential consequences of a conviction, if you have been charged with a controlled substance offense you should immediately contact an attorney who has experience defending those accused of a drug crime. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients who have been accused of drug possession, crack possession, cocaine possession, marijuana possession, drug selling, and other drug crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of drug crimes in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.