Criminal Possession in the Fifth Degree of a Controlled Substance: New York Penal Code § 220.06

Criminal possession in the fifth degree of a controlled substance is one of several drug possession charges in the Penal Code of New York. The prohibited controlled drugs include phencyclidine, a narcotic; cannabis; cocaine; ketamine; or any gamma hydroxybutyric acid preparations. The severity of the offense depends on the amount found in a person’s possession of a particular controlled substance. Moreover, having any amount of one of the named controlled substances with an intent to sell the drug is grounds for prosecution under this statute of the Penal Code.

Hypothetical Case

Suppose a person was riding as a passenger in the car of a friend. The friend ran a red light and was pulled over by the police for the traffic violation. Further, the police found that the friend’s driver’s license was suspended. During a pat down search of the friend, the police discovered a vial of cocaine in the friend’s pocket which led to her arrest for criminal possession of a controlled substance coupled with running the red light and driving while her driver’s license was suspended. Since the cocaine was found on the friend and not in the car or on the person, the friend was charged and not the passenger.

Possible Defenses

Lack of probable cause. If the methods used by the police to uncover the controlled substance were in violation of a person’s rights or was obtained without due process, New York law requires that before a search takes place, there must be probable cause. Probable cause means that the authorities must have defensible reason to suspect that a person has committed a crime or that they must have authorization to search by means of a search warrant. For example, the police may not impede your travel and stop you in your car if you are not violating any traffic laws or if there is no reason to believe that you have committed a crime. If the police pull you over and find controlled substances on your person or in your car, but had no reason to suspect that a crime had been committed or any traffic laws had been broken, the prosecuting attorney would not have legal grounds to bring the case to court; in this case, procedural improprieties and the lack of due process compromise the prosecutor’s ability to bring charges.

Other lines of defense. A defense attorney who is knowledgeable and proficient in controlled substance laws will troll through the evidence to determine which defensive approach is the most viable in a court of law. After careful consideration of the evidence, an experienced and savvy attorney can design a plan to advocate the court to decide in favor of the defendant.

Possible Sentence

Imprisonment. A person convicted of criminal possession in the fifth degree of a controlled substance faces a Class D felony penalty. The maximum jail time is seven years. If the convicted has no prior criminal history, the sentence could be less time in jail than if the convicted had a prior criminal history. Besides any prior criminal history, the presiding judge will consider the details of the specific crime and the background of the convicted person to determine an appropriate punishment allowed by law.

NY Penal Code § 220.06: Criminal Possession in the Fifth Degree of a Controlled Substance

Criminal possession in the fifth degree of a controlled substance is when a culpable person unlawfully and knowingly is in possession of

  1. A controlled substance intended for sale; or
  2. An aggregated weight of at least one-half ounce of one or more substances, compounds, mixtures, or preparations containing a narcotic preparation; or
  3. Fifty milligrams grams or more of phencyclidine; or
  4. One-fourth ounce or more of substances, mixtures, compounds, or preparations containing cannabis as defined in Section 3302 of the public health law; or
  5. Five hundred milligrams or more of cocaine; or
  6. One thousand milligrams or more of ketamine; or
  7. Ketamine in any amount when the person was previously convicted of possession or attempted possession; or
  8. Twenty-eight grams or more of substances, mixtures, compounds, or preparations containing gamma hydroxybutyric acid as defined in Section 3306 of the public health law.
Criminal Possession in the Fifth Degree of a Controlled Substance Lawyer

Criminal possession in the fifth degree of a controlled substance is a felony. If you are charged with possessing cocaine, heroin or any other illegal drug, you must contact a highly competent defense attorney immediately to make sure that you have every opportunity to fend off the charge and avoid a hefty prison sentence and significant fines. The prospect of paying your debt to society in prison for a very long time and having a drug conviction permanently on your record is indeed an undesirable outcome.

Elliott Adler PC is a highly-respected and experienced law firm that has successfully defended clients accused of misdemeanor and felony controlled substance or drug crimes in the state of New York, ardently advocating on behalf of clients against charges of drug possession, manufacturing and distribution offenses. The Elliot Adler PC attorney firm can impose the will of the law on behalf of defendants facing charges of criminal possession in the fifth degree of a controlled substance.

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. Criminal narcotic drug injection: § 220.48
  2. Criminal hypodermic instrument possession: § 220.45
  3. Criminal sale in the fourth degree of a controlled substance: § 220.34