NY Penal Law § 220.28: Use of a child to commit a controlled substance offense

New York has several laws that prohibit possessing, selling and manufacturing drugs. There are also laws making it illegal to commit drug crimes in places where children may observe the transaction or be placed in danger, or to involve children in illegal drug activity. If you do so the drug crime you commit will be considered more serious and you may face an additional charge such as use of a child to commit a controlled substance offense. Under New York Penal Code § 220.28 you would have committed the crime of use of a child to commit a controlled substance offense under the following circumstances:

1. You are at least 18 years old
2. You sell or attempt to sell a controlled substance
3. You use a child who is under 16 years old as part of the transaction

A man makes plans to deliver a small amount of meth to his cousin by placing it in his 5 year old daughter' backpack. The plan was for his cousin to retrieve the meth when the 5 year old visits the cousin for a play date with the cousin's 6 year old son. The 5 year old finds the meth and tastes a small amount of it. She gets violently ill and is rushed to the hospital. The man could be prosecuted for use of a child to commit a controlled substance offense as well as other offenses such as endangering the welfare of a child.

1. Criminal sale of a controlled substance in or near school grounds: New York Penal Code § 220.44
2. Endangering the welfare of a child: New York Penal Code § 260.10

Defenses to a charge of use of a child to commit a controlled substance offense would involve challenging the prosecution's evidence related to each element of the crime. For example, if you can show that the child was not less than 16 but was 17 at the time of the incident, then you cannot be charged with this crime. Similarly, if you were under 18, the prosecution would have to dismiss the charge.

Because use of a child to commit a controlled substance offense is a class E felony, if you are convicted the maximum possible prison sentence that you will receive is 4 years. Your sentence could also include a fine as well as a probation term of 5 years. In determining your sentence the judge will consider the crime committed, the details of the crime, your personal background, and your criminal history. If you are a first time offender your sentence will be less severe than if you have a prior criminal history.

1. A person is guilty of use of a child to commit a controlled substance offense when, being eighteen years old or more, he or she commits a felony sale or felony attempted sale of a controlled substance in violation of this article and, as part of that criminal transaction, knowingly uses a child to effectuate such felony sale or felony attempted sale of such controlled substance.

2. For purposes of this section, "uses a child to effectuate the felony sale or felony attempted sale of such controlled substance" means conduct by which the actor: (a) conceals such controlled substance on or about the body or person of such child for the purpose of effectuating the criminal sale or attempted sale of such controlled substance to a third person; or (b) directs, forces or otherwise requires such child to sell or attempt to sell or offer direct assistance to the defendant in selling or attempting to sell such controlled substance to a third person.

For purposes of this section, "child" means a person less than sixteen years of age.

While use of a child to commit a controlled substance offense is one of the less serious drug crimes, if you are charged with this offense you will also be charged with other crimes such as criminal sale of a controlled substance and child endangerment. If you are convicted of all of these crimes you could face several years in prison. 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.