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Criminal Sale in the Third Degree of a Controlled Substance: New York Penal Code § 220.39

Under NY Penal Code § 220.39, a person has committed the offense of criminal sale in the third degree of a controlled substance if knowingly and unlawfully the person has sold:

  1. A narcotic drug; or
  2. At least one gram of a stimulant; or
  3. At least one milligram of lysergic acid diethylamide; or
  4. At least twenty-five milligrams of a hallucinogen; or
  5. At least one gram of a hallucinogenic; or
  6. At least ⅛ of an ounce of methadone.

Furthermore, this penal code applies to selling narcotics to a person who is less than twenty-one years of age. Also, if a person has previously been convicted of a drug offense and subsequently sells a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide, that person has violated this section of the law.

Hypothetical Case

Suppose two police officers observed two men leaving a nightclub that had a reputation as a frequent venue for drug transactions. They saw one man handing the other man a pouch, and cash changed hands. The two police officers felt they had reason to believe that the sale of drugs had been transacted, so they stopped the men and inspected the pouch, determining that it contained cocaine. The first man could be charged with criminal sale of a controlled substance.

Possible Defenses

Lack of probable cause. If conditions for probable cause are not met, then drugs found while enforcing the law are not permissible as evidence. In New York, probable cause is mandatory in order to conduct a search of a person, their car, apartment, or office -- location that is under the control of the defendant. Law enforcement officers must have credible reason to hold the opinion that a person had committed a crime to imply probable cause. Probable cause in the scenario above may be invoked because the law enforcement agents saw the exchange of cocaine for cash.

The transaction was not an attempted or actual sales transaction. If the defendant can produce evidence that supports the notion that the transaction was not an attempted or actual sales event, then the charges may be dropped.

The amount of drugs involved did not meet the minimum required. If the person charged with the felony can prove that the amount of drugs was less than the minimum stipulated in the statute, then this section of the law may not be applicable.

Other lines of defense. Through diligent analysis the testimony of the accused and the officers who were directly involved, along with the events of the case, a competent and experienced defense lawyer may be able to expose strategies to aggressively defend the client.

Possible Sentence

To determine the appropriate sentence for the crime committed, the deciding judge will need to evaluate the convicted person’s history, criminal record, as well as various aspects of the the crime and the details of the case.

Imprisonment. A person convicted of criminal sale in the third degree of a controlled substance is subject to Class B felony sentencing. If there are no prior felony convictions, then the minimum sentence for incarceration is five years, but if there is a prior conviction, then the minimum prison sentence is ten years.

Monetary fine. The convicted person may be required to pay a fine in addition to the prison sentence of up to $30,000.

NY Penal Code § 220.39: Criminal Sale in the Third Degree of a Controlled Substance

To reiterate, criminal sale in the third degree of a controlled substance is a chargeable offense when a person knowingly and unlawfully sells:

  1. A drug that is a narcotic; or
  2. A stimulant, lysergic acid diethylamide, hallucinogenic substance, or hallucinogen and has a previous conviction for an offense described in Section 220 or the attempt to commit or conspiracy to commit the offenses specified in Section 220; or
  3. One gram or more of a stimulant; or
  4. One milligram or more of lysergic acid diethylamide; or
  5. Twenty-five milligrams or more of a hallucinogen; or
  6. One gram or more of a hallucinogenic substance; or
  7. One-eighth ounce or more of substances, mixtures, compounds, or preparations containing methamphetamine, isomers, salts, or salts of isomers; or
  8. Two hundred fifty milligrams or more of phencyclidine; or
  9. A preparation containing a narcotic to a person less than twenty-one years of age.
Attorney to Defend Against the Charge of Criminal Sale in the Third Degree of a Controlled Substance

Criminal sale in the third degree of a controlled substance is a Class B felony, a serious offense. If you are charged with committing a controlled substance offense, you should immediately contact a competent and experienced defense lawyer to protect yourself against a situation that could lead to imprisonment and severe fines. Moreover, the seriousness of a prosecution for a drug selling crime may be compounded by related charges of drug and drug paraphernalia possession.

Barry C. Weiss P.C. is a successful law firm that effectively advocates on behalf of individuals charged with criminal sale in the third degree of a controlled substance. The Elliot Adler PC law firm has forcefully represented clients who have been charged with felony and misdemeanor crimes related to controlled substances and drugs in the State of New York. The firm develops iron-clad defensive tactics to fend off charges of drug sales, manufacturing, distribution, and possession. The Elliot Adler PC attorney firm has fought persistently on behalf of clients who have been accused of drug crimes, including the sale or possession of marijuana, cocaine, heroin, OxyContin, methamphetamine, Vicodin, PCP, LSD, crack, and other controlled substances, as well as other drug crimes.

We can be reached at (212) 785-1300 or 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 possession in the third degree of a controlled substance: § 220.16
  2. Criminal sale in or near school grounds of a controlled substance: § 220.44
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