Drug Possession Charges in New York

What is criminal possession of a controlled substance?

Under Penal Law 220.03, the base offense is knowingly and unlawfully possessing a controlled substance. That is criminal possession in the seventh degree, a class A misdemeanor, and it has no weight threshold at all. Any measurable amount of a controlled substance you are not authorized to have is enough.

From there the ladder is driven by two things: weight, and whether the People allege intent to sell. Cannabis is no longer part of this article and is dealt with separately below.

What are the degrees of drug possession?

Charge	Typical trigger	Class
CPCS 7th, PL 220.03	Any amount, no threshold	Class A misdemeanor
CPCS 5th, PL 220.06	Any amount with intent to sell; cocaine 500mg or more; narcotic preparation half an ounce or more	Class D felony
CPCS 4th, PL 220.09	Narcotic drug one-eighth ounce or more; methamphetamine half an ounce or more; LSD 1mg or more	Class C felony
CPCS 3rd, PL 220.16	A narcotic drug with intent to sell; various weight and prior-conviction combinations	Class B felony

There are higher degrees above these, at second and first, reaching class A felonies. Note the numbering: there is no sixth degree. The article runs seventh, fifth, fourth, third, second, first, which trips up people trying to read their own charging paperwork.

The jump that matters most in practice is from the seventh degree to the fifth. It is the difference between a class A misdemeanor and a class D felony, and on the intent-to-sell route it can happen at any weight.

How does a small amount become intent to sell?

Intent is proved by circumstance, not by weight alone. What the People typically point to: quantity relative to personal use, packaging into separate units, scales, cutting agents, quantities of cash in small denominations, multiple phones, ledgers, and observed exchanges.

None of those is conclusive and several are equivocal. A person with a substance use disorder may buy in bulk. Cash is not evidence of anything by itself. The reason this fight is worth having is arithmetic: the same substance, in the same pocket, is a misdemeanor without intent and a felony with it.

Weight thresholds deserve the same scrutiny. The statute measures the aggregate weight of a preparation, compound or mixture containing the controlled substance, not the weight of the pure drug. That means packaging material, cutting agents and inert carriers can count toward a threshold, and a case sitting just above one is worth weighing again rather than conceding.

Can you be charged for drugs found in a car?

Yes. Penal Law 220.25(1) makes the presence of a controlled substance in a car presumptive evidence of knowing possession by every person in it. The exceptions are narrow: a licensed operator driving for hire in lawful pursuit of the trade, a person lawfully authorized to possess the substance in its original container, and the case where the drugs are concealed on one occupant’s person.

There is a second presumption in 220.25(2) reaching people in close proximity to drugs in open view in a room, where the circumstances show an intent to prepare them for sale.

These are the same mechanics that apply to weapons, and the analysis is set out in the presumption of possession guide.

Is marijuana still a drug charge?

Mostly no. Cannabis was moved out of article 220 entirely and into Penal Law article 222 when New York legalized adult use. Possession of up to three ounces of cannabis, or twenty four grams of concentrate, is not an offense at all for adults.

Above that, PL 222.25 makes unlawful possession of cannabis a violation punishable by a fine of no more than one hundred twenty five dollars. A violation is not a crime. Larger quantities escalate, but the entry point is nothing like the old article 221 regime.

Two practical consequences. Convictions under the repealed marijuana provisions were subject to automatic relief, the one context in which New York genuinely expunges rather than seals. And the smell of cannabis alone no longer justifies a vehicle search the way it once did, which is why so many roadside cases now turn on the suppression hearing.

What are the defenses to a drug possession charge?

The order of attack is usually the same:

• The stop and the search. Almost every drug case begins with a car stop, a street encounter or a warrant. If any of those was unlawful, the evidence is suppressed and the prosecution collapses. See suppression hearings, and note that New York has no good faith exception.
• Knowing possession. Presence near a substance is not knowledge of it, and the statutory presumptions are rebuttable.
• Weight and identity. The People must prove the substance is what they say it is and weighs what they say it weighs. Lab work, chain of custody and the aggregate weight rules are all contestable, and the degree often turns on a fraction of an ounce.
• Intent to sell. Where it is alleged, defeating it can drop a felony to a misdemeanor.

Is treatment available instead of jail?

Often, and it is frequently the better outcome. New York’s judicial diversion program under CPL article 216 allows eligible felony drug defendants to be diverted into court-supervised substance use treatment, with the charge reduced or dismissed on successful completion.

There is also a specific sealing route that exists nowhere else in New York law: CPL 160.58 permits conditional sealing of drug and specified offenses after judicial diversion. That is separate from, and can come sooner than, the ordinary routes in sealing a criminal record.

On a misdemeanor seventh degree charge with no record, an adjournment in contemplation of dismissal is realistic, and there is a further protection worth knowing: PL 220.03 expressly does not reach a residual amount in a syringe or needle, nor possession discovered because someone sought emergency help during an overdose.

Where are drug cases heard in Nassau County?

Misdemeanor seventh degree possession is heard at Nassau County District Court, 99 Main Street in Hempstead, or in Glen Cove or Long Beach City Court.

Felony drug charges are arraigned there as well, then move to Nassau County Court at 262 Old Country Road in Mineola, and in some matters to Supreme Court, Nassau County. Nassau operates a drug treatment court, and eligibility is worth raising early rather than after a plea has been negotiated.

Because so many Nassau drug cases begin with a traffic stop on the parkways or on Old Country Road, the legality of the stop is usually the first and most productive question in the file.

Related: presumption of possession in a vehicle, suppression hearings, adjournments in contemplation of dismissal, and criminal defense in Nassau County.