Committing a Controlled Substance Offense Using a Child: New York Penal Code § 220.28

New York has laws to protect children and make it illegal to have children in the presence of activities related to the manufacturing, selling or possession of drugs. The children in such circumstances may find themselves in danger or coerced to become involved in criminal transactions. Further, these children are learning or participating in illegal behavior. Adults who involve children in the manufacturing, selling or possession of drugs are treated more seriously, and additional charges and penalties may apply if found guilty. According to NY Penal Code § 220.28, the crime of committing a controlled substance offense using a child is characterized by the following criteria:

  1. The adult was eighteen or more years of age;
  2. The adult sold or attempted to sell a controlled substance; and
  3. The adult used a child less than sixteen years of age during the transaction.
Hypothetical Case

Suppose a man placed a small packet of methamphetamines wrapped in colorful gift wrap in his five-year-old daughter’s backpack without her knowledge. She was going to a neighbor’s house for a play date with the neighbor’s six-year-old daughter. The neighbor was going to retrieve the packet of methamphetamines once the five-year-old arrived, but before she got there, she opened her backpack and found the gift-wrapped packet, opened it and put her finger in the methamphetamine filled packet. The five-year-old, then placed her finger on her tongue to taste it. Immediately afterwards, the girl became violently ill and was rushed to the hospital. The five-year-old’s father could be charged with committing a controlled substance offense using a child. Also, the father could be charged with child endangerment.

Possible Defenses

The transaction was not an attempted or actual sales transaction. If the defendant can convince the court the incident was not an attempt to sell or an actual sales transaction, then lesser charges or an acquittal may become available.

No knowledge of the controlled substance. The prosecuting attorney must prove that the parent knew of the methamphetamine in his daughter’s backpack and placed it there. If no convincing evidence can be provided to support the prosecuting attorney’s charge, then the case may be dismissed or a lesser charge may become an option.

Other lines of defense. Through careful examination of the circumstances and the facts of the case, a skilled and experienced defense attorney may be able to find other ways to legally defend the client.

Possible Sentence

If found guilty, the presiding judge will consider the convicted person’s personal background and presence or absence of a prior criminal record, as well as the crime committed and the details of the case.

Imprisonment. A person convicted of committing a controlled substance offense using a child faces Class E felony sentencing. The maximum time behind bars for this crime is four years.

Monetary fine. In addition to the prison sentence, the convicted person may have to pay a fine by court decree.

Probation. Further, the court may decide to impose a five-year probationary period after the prison sentence is served.

NY Penal Code § 220.28: Committing a Controlled Substance Offense Using a Child

To reiterate, committing a controlled substance offense using a child is implicated when an adult person who is at least eighteen years of age knowingly uses a child under the age of sixteen:

  1. To effectuate a felony sale or felony attempted sale of a controlled substance on behalf of the adult; and
  2. The felony sale or felony attempted sale of a controlled substance on behalf of the adult is accomplished by means of (a) concealing the controlled substance on or about the body of the child; or (b) requiring, directing or forcing the child to sell, attempt to sell or directly assist the adult to sell or attempt to sell a controlled substance to a third party.
Attorney to Defend Against the Charge of Committing a Controlled Substance Offense Using a Child

Committing a controlled substance offense using a child is a Class E felony. If you are charged with committing a controlled substance offense using a child, you must immediately contact a reputable defense attorney to deter imprisonment, expensive fines and probation.

Elliott Adler PC is a stalwart defense attorney firm that will ably represent individuals charged with committing a controlled substance offense using a child. The Elliot Adler PC law firm has successfully represented clients accused of misdemeanor and felony controlled substance and drug crimes in New York. The firm develops effective defense cases to attack charges of drug injection, possession, manufacturing and distribution. The Elliot Adler PC attorney firm has fought on behalf of clients who have been accused of drug crimes, including possession of paraphernalia, marijuana, cocaine, crack, and other drugs, as well as other drug crimes.

We can be reached at (212) 785-1300 or http://www.newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.

Related Offenses

For additional information, refer to the following sections of the New York Penal Code:

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