NY Penal Law § 220.34: Criminal sale of a controlled substance in the fourth degree

You will have committed the drug crimes of criminal sale of a controlled substance in the fourth degree under New York Penal Code § 220.34 if you knowingly and unlawfully sell a narcotic preparation, a depressant, cannabis, phencyclidine, or methadone. The statute requires that you possess a specified amount of a listed drug in order to face prosecution under the criminal sale of a controlled substance in the fourth degree statute. If you sell less than the required amounts, you could still be prosecuted under criminal sale of a controlled substance in the fifth degree. In addition, if you sell a controlled substance on the grounds of a school, education facility, child day care center, or on a school bus, you will have violated this statute regardless of the amount of the drug involved.

The police observe a man hand a woman a small packet in exchange for cash. Because this takes place in an area known for drug problems, the police officer believes that the man just sold drugs to the woman. Upon stopping and searching the man, the officer finds several glassine envelopes with what appears to be heroin. The man could be prosecuted for criminal sale of a controlled substance based on the officer's observation and the evidence found on the man's person.

1. Criminal possession of a controlled substance in the fourth degree: New York Penal Law § 220.09
2. Criminal sale of a controlled substance in or near school grounds: New York Penal Code § 220.44

If you are arrested for fourth degree criminal sale of a controlled substance, you can challenge the charge based on the amount of drugs found in the incident. If the drug is less than the amount specified in the statute, then a charge of criminal sale of a controlled substance in the fourth degree would not be valid.

Another defense would attack the method the police used to find the drugs. In order to conduct a search, whether the search is of your car, your home, your office or some other place, the police must have probable cause. If the search was unlawful, anything which the search produces, including drugs would be inadmissible in court and your case would likely be dismissed.

Because criminal sale of a controlled substance in the fourth degree is a Class C felony, if you are convicted your possible sentence will be up to 15 years in prison. The minimum prison sentence that the judge will give you is either 3 1/2 or 7 years depending on whether or not you have a prior felony conviction. You will also have to pay a fine of up to $15,000.

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

1. a narcotic preparation; or

2. a dangerous depressant or a depressant and the dangerous depressant weighs ten ounces or more, or the depressant weighs two pounds or more; or

3. concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of the public health law; or

4. phencyclidine and the phencyclidine weighs fifty milligrams or more; or

5. methadone; or

6. 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

7. ketamine and said ketamine weighs four thousand milligrams or more.

8. a controlled substance in violation of § 220.31 of this article, when such sale takes place upon school grounds or on a school bus; o

9. a controlled substance in violation of § 220.31 of this article, when such sale takes place upon the grounds of a child day care or educational facility under circumstances evincing knowledge by the defendant that such sale is taking place upon such grounds. As used in this subdivision, the phrase "the grounds of a child day care or educational facility" shall have the same meaning as provided for in subdivision five of § 220.44 of this article. 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 day care or educational facility when notice is conspicuously posted of the presence or proximity of such facility; or

10. 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.

Drug cases can involve several complicated issues that could factor into the charge you face, whether or not you are prosecuted, whether or not you are convicted and if convicted, the sentence you face. If you have been arrested and charged with a drug crime in New York immediately contact an experienced attorney. 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.