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New York Possession of a Controlled Substance Defense

Well over 50,000 people are arrested for drug crimes in New York each year. Most of these arrests are for drug possession, drug distribution, drug manufacturing, and for drug paraphernalia. Drugs involved include marijuana, cocaine, heroin, methamphetamine, LSD, PCP and various prescription drugs. Because the use of drugs presents a significant health problem and leads to other crimes, New York police and prosecutors spend millions of dollars each year and spend significant time and manpower to arresting and prosecuting those suspected for drug crimes. In their zeal to punish those involved in drug crimes, law enforcement does not always get it right. There are many cases in which those arrested have valid defenses that result in drug charges being reduced, dismissed, or in the accused being acquitted. If you are convicted of a drug crime, the penalties can be steep. Most drug crimes are felonies, meaning that sentences can involve spending years and years in prison. Because of the possible consequences of a drug crime conviction, if you have been charged with a drug crime such as drug possession, marijuana possession, drug manufacturing, or drug distribution, you should immediately contact an experienced New York drug crimes lawyer who will explain to you your legal options and work closely with you to aggressively defend you against these charges. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with drug crimes and other serious crimes such as domestic violence and sex crimes. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.

Drug possession crimes

Under New York law controlled substance drug possession offenses vary in seriousness based on the type of drug involved and in some cases the amount of the drug involved. Criminal possession of a controlled substance in the seventh degree is the minimum charge that you will face for possessing a controlled substance. It is a class A misdemeanor with a possible sentence of up to 1 year in jail. N.Y. Pen. Law § 220.03.

Criminal possession of a controlled substance in the fifth degree is the least serious felony possession charge. It is a class D felony. It involves selling specific, minimum amounts of various drugs such as a narcotic preparation, PCP, a concentrated preparation of cannabis, cocaine, ketamine, or GHB. It is a class D felony with a possible sentence of up to 7 years in prison. N.Y. Pen. Law § 220.06. Criminal possession of a controlled substance in the fourth degree is another felony controlled substance possession charge and also involves having minimum amounts of certain drugs such as narcotic drug preparations, methamphetamine preparations, narcotic preparations, stimulants, LSD, hallucinogens, hallucinogenic substances, dangerous depressants, depressants, concentrated cannabis, PCP, methadone, ketamine, or GHB. It is a class C felony with a possible sentence of 15 years in prison. N.Y. Pen. Law § 220.09. Criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the second degree, and criminal possession of a controlled substance in the first degree involves possessing greater amounts of specific drugs. The most serious criminal possession of a controlled substance charge is the first degree charge which is a class A-I felony with a possible sentence of life in prison.

Defenses to drug possession charges

Not an illegal drug. If you have a substance that resembles an illegal drug but is not, then the drug possession charge against you may have to be dismissed. For example, legal prescription pills may resemble illegal pills. Also, many designer drugs may look suspicious but may not have the chemical makeup of a drug on the list of controlled substances. A chemical lab test can show whether or not the drug that you were found with is a banned substance.

Lawful possession. There are drugs that are in fact legal if you have a valid prescription for them. For example, if you have Vicodin or OxyContin a police officer may assume that you have it illegally. However, if you have a lawful prescription for the drug, then you are in lawful possession of the drug.

Insufficient quantity. If you are charged with a drug possession crime that requires that you have a minimum amount of a particular drug, if the prosecution cannot prove that you had at least that amount then that charge will have to be dismissed. However, you may still face a lesser possession charge based on the amount of the drug that the prosecutor can show that you had.

Absence of "knowing" element. Drug offenses require that you "knowingly" possess the drug. If, for example, you can show that you were under the impression that your friend gave you a legal drug, but it turns out that it was in fact a controlled substance, then you may have a valid defense to a drug crime charge.

Witness or victim of drug or alcohol overdose. If you seek healthcare because you or someone else is experiencing a medical emergency such as a drug overdose, and in the course of responding to the medical emergency, it comes to the attention of law enforcement that you have a controlled substance, you cannot be charged with drug possession. N.Y. Pen. Law § 220.78

Unlawful search and seizure. Fourth Amendment search and seizure issues are common to drug possession cases. The Fourth Amendment to the U.S. Constitution prohibits illegal search and seizure procedures. While the police can seize drugs that are in plain view and use them as evidence in a drug possession case, if they are not in plain view, the drugs can only be seized pursuant to lawful search procedures. If they are not, then the seizure may be ruled invalid along with evidence that you were in possession of drugs.


The sentence for a marijuana possession, or other drug possession crime conviction varies based on the classification of the drug crime, with the maximum sentence being up to life for criminal possession of a controlled substance, a class A-1 felony. The most important factors that will determine your sentence are the classification of the drug crime as a misdemeanor or felony, and your criminal history. Those who do not have a prior criminal history will receive less severe sentences than those with prior felony convictions. In addition, if you have a drug or alcohol substance abuse problem, you may be eligible for an alternative sentencing program called Drug Treatment Court.

Contact the Law Offices of Stephen Bilkis & Associates

Penalties for drug possession crimes can be severe, including years in jail away from family and friends. However, there are also many ways to challenge drug crime charges. For these reasons, if you are arrested for a drug crime it is important to immediately contact an attorney who has experience defending those accused of drug possession crimes. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been accused of drug possession, marijuana possession, cocaine possession, crack possession, as well as other types of drug charges. 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.

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