Controlled Substances (Penal Law Article 220) FINAL

Criminal Possession of a Controlled Substance First, I will introduce the referenced Statutes Second, I will define common terms

Criminal Possession of a Controlled Substance Lastly, I will break down the following Criminal Possession of a Controlled Substance offenses into elements: seventh degree (Penal Law § 220.03) fifth degree (Penal Law § 220.06 [1], [2], [5]) fourth degree (Penal Law § 220.09 [1], [3]) third degree (Penal Code § 220.16 [1]) second degree (Penal Law § 220.18 [1]) first degree (Penal Law § 220.21 [1])

Controlled Substances Statutes Referenced Public Health Law refers to the laws and regulations enacted to protect public health. Article 33, to which § 3302 and § 3306, belong, is known as the NYS Controlled Substances Act which regulates the possession, manufacture, dispensing, administering, and distribution of controlled substances in New York. (McKinney’s Public Health Law § 3301).

Controlled Substances Statutes Referenced § 3302 contains the definitions of general terms used in Article 33. § 3306 contains Schedules I – V of controlled substances:

§ 3306 Schedules Schedule I substances have a high abuse potential, and have no accepted medical use or are not acceptably safe for use in medical treatment (e.g., heroin, lysergic acid diethylamide [LSD]). (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Controlled Substance, by William C. Donnino).

§ 3306 Schedules Schedule II substances also have a high potential for abuse, but may have generally-accepted or restricted medical value (e.g., methadone, cocaine, demerol). (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Controlled Substance, by William C. Donnino).

§ 3306 Schedules Schedule III substances have a potential for physical or psychological dependence, but are regularly used in medical treatment (e.g., the more potent stimulants and depressants). (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Controlled Substance, by William C. Donnino).

§ 3306 Schedules Schedule IV substances include tranquilizers, sedatives and other depressants. (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Controlled Substance, by William C. Donnino).

§ 3306 Schedules Schedule V substances include cough medicines containing small amounts of narcotic substances. (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Controlled Substance, by William C. Donnino).

Controlled Substances Definitions of Common Terms A person KNOWINGLY possesses a substance when that person is aware that he or she is in possession of that substance. (Penal Law § 15.05 [2]). This implies a culpable mental state or mens rea.

Controlled Substances Definitions of Common Terms Unless a person knows that they are in possession of an illegal substance, he or she cannot be charged with this crime. Example: a messenger unaware of the controlled substance contained in the package to be delivered, cannot be charged with this crime. (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Knowingly, by William C. Donnino).

Controlled Substances Definitions of Common Terms A person UNLAWFULLY possesses a substance when that person has no legal right to possess that substance. “UNLAWFULLY” is defined in Penal Law § 220.00 [2] to mean in violation of Public Health Law Article 33 which makes it UNLAWFUL for any person to possess or sell a controlled substance unless expressly allowed by this article. 

Controlled Substances Definitions of Common Terms Public Health Law Article 33 does not apply to a person possessing a controlled substance obtained under a physician’s or other practitioner’s direction and provided by a pharmacist who is authorized by law to dispense such substances.

Controlled Substances Definitions of Common Terms POSSESS means to have: physical possession over tangible property or sufficient control over the area in which the property is found; includes: in one’s hands, on one’s person, in one’s vehicle, or on one’s premises.(Penal Law § 10.00 [8]); (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, Possess, by William C. Donnino).

Controlled Substances Definitions of Common Terms CONTROLLED SUBSTANCE (renamed from “dangerous drug” in 1973): means any substance listed in Public Health Law § 3306, Schedules I through V, other than marihuana, but including concentrated cannabis, a potent form of marihuana. (Public Health Law § 3302 [4] [a]).

Controlled Substances Definitions of Common Terms The Controlled Substances are grouped by Penal Law § 220.00 into seven categories: “narcotic drug”; “narcotic preparation”; “hallucinogen”; “hallucinogenic substance”; “stimulant”; “dangerous depressant”; “depressant”. 

Controlled Substances Definitions of Common Terms NARCOTIC DRUG any controlled substance listed in Public Health Law § 3306, Schedule I (b) Opiates, I (c) Opium Derivatives, II (b) Vegetable or chemically synthesized substances, II (c) Opiates, other than methadone (which has proved helpful in treating people addicted to heroin).

Controlled Substances Definitions of Common Terms NARCOTIC PREPARATION any controlled substance listed in Public Health Law § 3306, Schedule II (b-1) hydrocodone, III (d) nalorphine, III (e) narcotic drugs.

Controlled Substances Definitions of Common Terms Difference between narcotic drug and narcotic preparation Narcotic drugs are controlled substances that are drugs in and of themselves. Narcotic preparations are controlled substances that are produced using chemicals to create a narcotic drug. (Public Health Law § 3306, Schedules I, II, III)

Controlled Substances Definitions of Common Terms SELL To sell, exchange, give or dispose of to another, or To offer or agree to do the same. (Penal Law § 220.00; Public Health Law § 3302).

Controlled Substances Definitions of Common Terms INTENT conscious objective or purpose. A person possesses a substance with INTENT to sell it when his or her conscious objective or purpose is to sell the substance. (Penal Law § 15.05 [1]).

Controlled Substances Definitions of Common Terms AGGREGATE WEIGHT the weight of the substance which contains the NARCOTIC DRUG or the NARCOTIC PREPARATION, irrespective of the amount of the drug actually in the substance.

Controlled Substances Definitions of Common Terms Remaining controlled substances are referred to by PURE WEIGHT, the actual amount of the drug itself. There is no statutory definition of AGGREGATE WEIGHT. (Penal Law § 220, Practice Commentary, Elements of Crimes of Possession or Sale Defined, “Aggregate” or “Pure” Weight, by William C. Donnino).

Controlled Substances Definitions of Common Terms OUNCE an avoirdupois ounce as applied to solids or semi-solids, a fluid ounce as applied to liquids. (Penal Law § 220.00)

The Basic Offense: CPCS in the seventh degree Statute (Penal Law § 220.03): A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance.

The Basic Offense: CPCS in the seventh degree Elements: A person must knowingly possess any amount of a controlled substance. A person must know that possession of this controlled substance is unlawful.

Elevators The higher degrees of the crime of Criminal Possession of a Controlled Substance are based on elevators or aggravating factors: Weight of the particular controlled substance; and/or Whether it was possessed with the intent to sell; and/or The type of controlled substance possessed.

Elevators Elevators from the seventh degree to fifth degree: 1. Possession with the intent to sell; or 2. Possession of a narcotic preparation that has an aggregate weight of 1/2 ounce or more; or 3. Possession of cocaine that weighs more than 500 milligrams or more (pure weight).

CPCS in the fifth degree (Penal Law § 220.06 [1]) Statute: A person is guilty of criminal possession of a controlled substance in the fifth degree when he or she knowingly and unlawfully possesses: (1) a controlled substance with intent to sell it.

CPCS in the fifth degree (Penal Law § 220.06 [1]) Elements A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and A person possessed the controlled substance with the intent to sell the controlled substance.

CPCS in the fifth degree (Penal Law § 220.06 [2]) Statute: A person is guilty of criminal possession of a controlled substance in the fifth degree when he or she knowingly and unlawfully possesses: (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.

CPCS in the fifth degree (Penal Law § 220.06 [2]) Elements A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and The controlled substance was a narcotic preparation that has an aggregate weight of 1/2 ounce or more.

CPCS in the fifth degree (Penal Law § 220.06 [5]) Statute: A person is guilty of criminal possession of a controlled substance in the fifth degree when he or she knowingly and unlawfully possesses: (5) cocaine and said cocaine weighs 500 milligrams or more.

CPCS in the fifth degree (Penal Law § 220.06 [5]) Elements A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and What was possessed was cocaine that weighs more than 500 milligrams.

Elevators Elevators from the fifth degree to fourth degree: Possession of a narcotic drug that has an aggregate weight of 1/8 ounce or more; or Possession of a narcotic preparation that has an aggregate weight of two ounces or more.

CPCS in the fourth degree (Penal Law § 220.09 [1]) Statute: A person is guilty of criminal possession of a controlled substance in the fourth degree when he or she knowingly and unlawfully possesses: (1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more.

CPCS in the fourth degree (Penal Law § 220.09 [1]) Elements A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and A person possessed a controlled substance containing a narcotic drug that has an aggregate weight of 1/8 ounce or more.

CPCS in the fourth degree (Penal Law § 220.09 [3]) Statute: A person is guilty of criminal possession of a controlled substance in the fourth degree when he of she knowingly and unlawfully possesses (3) 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 two ounces or more.

CPCS in the fourth degree (Penal Law § 220.09 [3]) Elements A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and The controlled substance was a narcotic preparation that has an aggregate weight of two ounces or more

Elevators Elevators from the fifth degree to the third degree: Possession of a narcotic drug with intent to sell.

CPCS in the third degree (Penal Law § 220.16 [1]) Statute: A person is guilty of criminal possession of a controlled substance in the third degree when he or she knowingly and unlawfully possesses: (1) a narcotic drug with intent to sell it.

CPCS in the third degree (Penal Law § 220.16 [1]) Elements: A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and The controlled substance was a narcotic drug; and A person possessed the narcotic drug with the intent to sell it.

CPCS in the second degree (Penal Law § 220.18 [1]) Elevator from the fourth degree to the second degree: Possession of a narcotic drug that has an aggregate weight of four ounces or more.

CPCS in the second degree (Penal Law § 220.18 [1]) Statute: A person is guilty of criminal possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses: (1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more.

CPCS in the second degree (Penal Law § 220.18 [1]) Elements: A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and The controlled substance was a narcotic drug that has an aggregate weight of four ounces or more.

CPCS in the first degree (Penal Law § 220.21 [1]) Elevator from the second degree to first degree: Possession of a narcotic drug that has an aggregate weight of eight ounces or more.

CPCS in the first degree (Penal Law § 220.21 [1]) Statute: A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses: (1)one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more.

CPCS in the first degree (Penal Law § 220.21 [1]) Elements: A person must knowingly possess a controlled substance; and A person’s possession of this controlled substance is unlawful; and The controlled substance was a narcotic drug that has an aggregate weight of eight ounces or more.

Summary: Criminal Possession of a Controlled Substance CPCS Seventh Degree: a class A misdemeanor, possession of a controlled substance of any amount. CPCS Fifth Degree: a class D felony, possession with intent to sell a controlled substance or possession of a narcotic preparation of aggregate weight of 1/2 ounce or possession of cocaine weighing more than 500 milligrams.

Criminal Possession of a Controlled Substance Summary CPCS Fourth Degree: a class C felony, possession of a narcotic drug of aggregate weight of 1/8 ounce or possession of a narcotic preparation of aggregate weight of 2 ounces. CPCS Third Degree: a class B felony, possession of any quantity of a narcotic drug with intent to sell it.

Criminal Possession of a Controlled Substance Summary CPCS Second Degree: a class A-II felony, possession of a narcotic drug of aggregate weight of 4 ounces. CPCS First Degree: a class A-I felony, possession of a narcotic drug of aggregate weight of 8 ounces.

Criminal Possession of a Controlled Substance Summary The escalating penalties represent the notion that: as possession and use of quantities of a controlled substance increase, there is potentially more harm caused, and possession of weights beyond enough for personal use makes it more likely that the possessor was prepared to sell the drug.