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DRUG ABUSE AND CONTROL;

OLR Research Report


NEW YORK DRUG POSSESSION AND SALE CRIMES

By: Christopher Reinhart, Chief Attorney

ISSUE

Summarize the penalties for drug possession and sale crimes in New York.

SUMMARY

This report focuses on penalties for drug possession and sale crimes in New York.  We break down these crimes into separate tables for possession, sale, and other related crimes.  For purposes of this report, we exclude certain crimes such as those for drug paraphernalia and drug prescribers.

Penalties for drug crimes in New York range from a fine of up to $100 for possessing marijuana under certain circumstances to a maximum of life in prison for operating as a major trafficker.  The law requires each sentence for one of these offenders to include a period of post-release supervision.  For class B, C, D, and E felonies, except for selling controlled substances to a child, the law allows the court to impose an alternative sentence of up to one year in prison under certain circumstances.  The court must consider the crime's nature and circumstances and the defendant's history and character to determine that the sentence that would otherwise apply would be unduly harsh (NY Penal 70.70).  These alternate sentences are noted in the table below.

New York also enhances penalties for those with prior convictions.  We include these in a separate table at the end of the report.  A number of other sentencing rules apply to these offenders which we do not discuss in detail.  For example, someone sentenced for a class A-II felony can be sentenced to lifetime probation and those convicted of a class B felony, except for selling a controlled substance to a child, can be sentenced to parole supervision.

DRUG POSSESSION CRIMES

Table 1 describes the different drug possession crimes and their penalties in New York.  Penalties for these crimes range from a fine of up to $100 for certain types of marijuana possession to up to 20 years in prison for 1st degree possession of a controlled substance.

Table 1:  Drug Possession Crimes in New York

Crime

Degree

Conduct

Penalty

Possessing controlled substances

(NY Penal 220.03 to 220.25)

7th degree

Possessing a controlled substance

Class A misdemeanor

Up to 1 year in prison

Up to $1,000

5th degree

(New York does not have a 6th degree crime)

Possessing:

a controlled substance with intent to sell

at least oz preparations containing narcotics preparations

at least 50 mg phencyclidine (PCP)

at least oz concentrated cannabis preparation

at least 500 mg cocaine

at least 1,000 mg ketamine

ketamine with a prior conviction of ketamine possession

at least 28 g of gamma hydroxybutyric acid (GHB)

Class D felony

1 to 2.5 years in prison

Alternate penalty of up to one year

Up to $5,000

4th degree

Possessing at least:

⅛ oz preparations containing a narcotic drug

oz preparations containing methamphetamine or its precursors

2 oz preparations containing narcotics preparations

1 g stimulants

1 mg lysergic acid diethylamide (LSD)

25 mg hallucinogen

1 g hallucinogenic substance

10 oz dangerous depressant

2 lbs of depressants

1 oz of concentrated cannabis preparation

250 mg PCP

360 mg methadone

50 mg PCP with intent to sell and prior conviction of a drug offense

4,000 mg ketamine

200 g GHB

Class C felony

1 to 5.5 years in prison

Alternate penalty of up to one year

Up to $15,000

Table 1 (continued)

Crime

Degree

Conduct

Penalty

 

3rd degree

Possessing:

a narcotic with intent to sell

a stimulant, hallucinogen, hallucinogenic substance, or LSD with intent to sell and a prior drug conviction

at least 1 g stimulant with intent to sell

at least 1 mg LSD with intent to sell

at least 25 mg hallucinogen with intent to sell

at least 1 g hallucinogenic substance with intent to sell

at least ⅛ oz preparations containing methamphetamine or its precursors with intent to sell

at least 5 g stimulants

at least 5 mg LSD

at least 125 mg hallucinogens

at least 5 g hallucinogenic substance

at least oz preparations containing a narcotic drug

at least 1,250 mg PCP

Class B felony

1 to 9 years in prison

Alternate penalty of up to one year

Up to $30,000

2nd degree

Possessing at least:

4 oz preparations containing a narcotic drug

2 oz preparations containing methamphetamine or its precursors

10 g stimulants

25 mg LSD

625 mg of a hallucinogen

25 g hallucinogenic substance

2,880 mg methadone

Class A-II felony

3 to 10 years in prison

Up to $50,000

1st degree

Possessing at least:

8 oz preparations containing a narcotic drug

5,760 oz of methadone

Class A-I felony

8 to 20 years in prison

Up to $100,000

Possessing precursors of controlled substances

(NY Penal 220.60)

-

Possessing certain precursors of controlled substances with intent to make a controlled substance

Class E felony

1 to 1.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Table 1 (continued)

Crime

Degree

Conduct

Penalty

Possessing methamphetamine manufacturing material

(NY Penal 220.70 to 220.71)

2nd degree

Possessing a precursor, solvent, or chemical reagent with intent to use it or knowing another intends to use it to produce methamphetamine.

Class A misdemeanor

Up to 1 year in prison

Up to $1,000

1st degree

Subsequent conviction of the 2nd degree crime within 5 years of a previous conviction of the crime.

Class E felony

1 to 1.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Possessing methamphetamine precursors (NY Penal 220.72)

-

With intent to use or knowing that another intends to use it to manufacture methamphetamine, possessing a:

precursor and

solvent or chemical reagent

Class E felony

1 to 1.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Possessing marijuana (NY Penal 221.05)

-

Presumably, this punishes conduct not covered by the criminal penalties described below

Up to $100

If prior drug conviction in prior 3 years:  up to $200

If two prior drug convictions in prior 3 years:  up to 15 days in prison, up to $250 fine, or both

Possessing marijuana (NY Penal 221.10 to 221.30)

5th degree

Possessing marijuana
• In a public place, and the marijuana is burning or open to public view or
• preparations weighing more than 25g

Class B misdemeanor

Up to 3 months in prison

Up to $500

 

4th degree

Possessing more than 2 oz of marijuana preparations

Class A misdemeanor

Up to 1 year in prison

Up to $1,000

 

3rd degree

Possessing more than 8 oz of marijuana preparations

Class E felony

1 to 1.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Table 1 (continued)

Crime

Degree

Conduct

Penalty

 

2nd degree

Possessing more than 16 oz of marijuana preparations

Class D felony

1 to 2.5 years in prison

Alternate penalty of up to one year

Up to $5,000

 

1st degree

Possessing more than 10 lbs of marijuana preparations

Class C felony

1 to 5.5 years in prison

Alternate penalty of up to one year

Up to $15,000

DRUG SALE CRIMES

Table 2 describes the different drug sale crimes and their penalties in New York.  Penalties range from up to three months in prison for 5th degree selling marijuana to up to 20 years in prison for 1st degree selling controlled substances.

Table 2:  Drug Sale Crimes in New York

Crime

Degree

Conduct

Penalty

Selling controlled substances

(NY Penal 220.31 to 220.44)

5th degree

Selling a controlled substance

Class D felony

1 to 2.5 years in prison

Alternate penalty of up to one year

Up to $5,000

 

4th degree

Selling:

a narcotic preparation

at least 10 oz dangerous depressant or at least 2 lbs depressants

concentrated cannabis

at least 50 mg PCP

methadone

PCP with a prior drug conviction

at least 4,000 mg ketamine

Class C felony

1 to 5.5 years in prison

Alternate penalty of up to one year

Up to $15,000

Table 2 (continued)

Crime

Degree

Conduct

Penalty

   

a controlled substance on (1) school grounds, (2) a school bus, or (3) a child day care or an education facility up to kindergarten or grounds or public areas within 1,000 feet of them

at least 28 g GHB preparation

 
 

3rd degree

Selling:

a narcotic drug

a stimulant, hallucinogen, hallucinogenic substance, or LSD with a prior drug conviction

at least 1 g stimulant

at least 25 mg hallucinogen

at least 1 g hallucinogenic substance

at least ⅛ oz preparations containing methamphetamine or its precursors

at least 250 mg PCP

a narcotic preparation to someone under age 21

Class B felony

1 to 9 years in prison

Alternate penalty of up to one year

Up to $30,000

 

2nd degree

Selling at least:

oz preparation containing a narcotic drug

  oz preparations containing methamphetamine or its precursors

5 g stimulants

5 mg LSD

25 mg hallucinogen

5 g hallucinogenic substance

360 mg methadone

Class A-II felony

3 to 10 years in prison

Up to $50,000

 

1st degree

Selling at least:

2 oz preparation containing a narcotic drug

2,880 mg methadone

Class A-I felony

8 to 20 years in prison

Up to $100,000

Selling near schools (NY Penal 220.44)

-

Selling on (1) grounds of a child day care or an education facility up to kindergarten or public areas within 1,000 feet of them, knowing the sale takes place there; (2) school grounds; or (3) a school bus:

a narcotic preparation

at least 10 oz dangerous depressant or at least 2 lbs depressant

Class B felony

2 to 9 years in prison

Alternate penalty of up to one year

Up to $30,000

Table 2 (continued)

Crime

Degree

Conduct

Penalty

   

concentrated cannabis

at least 50 mg PCP

methadone

PCP with a prior drug conviction

a narcotic drug

a stimulant, hallucinogen, hallucinogenic substance, or LSD with a prior drug conviction

at least 1 g stimulant

at least 1 mg LSD

at least 25 mg hallucinogen

at least 1 g hallucinogenic substance

at least ⅛ oz preparations containing methamphetamine or its precursors

at least 250 mg PCP

Selling on school grounds or a school bus at least 4,000 mg ketamine

 

Selling controlled substances to minors (NY Penal 220.48)

-

Committing 4th or 3rd degree criminal sale of a controlled substance and the:

seller is over 21 and

buyer is under 17

Class B felony

2 to 9 years in prison

Up to $30,000 fine

Selling marijuana (NY Penal 221.35 to 221.55)

5th degree

Selling:

2 g or less marijuana preparations or

one marijuana cigarette

Class B misdemeanor

Up to 3 months in prison

Up to $500

 

4th degree

Selling marijuana other than the amounts specified under the 5th degree crime

Class A misdemeanor

Up to 1 year in prison

Up to $1,000

 

3rd degree

Selling more than 25 g marijuana preparations

Class E felony

1 to 1.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Table 2 (continued)

Crime

Degree

Conduct

Penalty

 

2nd degree

Selling:
• more than 4 oz marijuana preparations or
• marijuana to someone under age 18

Class D felony

1 to 2.5 years in prison

Alternate penalty of up to one year

Up to $5,000

 

1st degree

Selling more than 16 oz marijuana preparations

Class C felony

1 to 5.5 years in prison

Alternate penalty of up to one year

Up to $15,000

OTHER DRUG CRIMES

In Table 3, we describe several other drug-related crimes and their penalties.

Table 3:  Other Drug-Related Crimes

Crime

Degree

Conduct

Penalty

Using a child to commit controlled substance crimes (NY Penal 220.28)

-

Person at least age 18 committing a felony controlled substance sale or attempted sale crime knowingly using a child under age 16 to make the sale or attempt

Class E felony

1 to 1.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Manufacturing methamphetamine (NY Penal 220.73 to 220.75)

3rd degree

Possessing certain combinations of laboratory equipment and methamphetamine precursors, chemical reagents, or solvents in the same location with intent to use or knowing another intends to use them to manufacture methamphetamine

Class D felony

1 to 2.5 years in prison

Alternate penalty of up to one year

Up to $5,000

Table 3 (continued)

Crime

Degree

Conduct

Penalty

 

2nd degree

Committing 3rd degree manufacturing methamphetamine:

in the presence of someone under age 16 while the offender is at least 5 years older or

with a prior conviction in the past 5 years of certain methamphetamine crimes

Class C felony

1 to 5.5 years in prison

Alternate penalty of up to one year

Up to $15,000

 

1st degree

Committing 2nd degree manufacturing methamphetamine with a prior conviction of any degree of manufacturing methamphetamine crime

Class B felony

1 to 9 years in prison

Alternate penalty of up to one year

Up to $30,000

Operating as a major trafficker (NY Penal 220.77)

-

Directing a controlled substance organization with sales greater than $75,000 within a 12 month period

Knowingly selling narcotics with sales greater than $75,000 within a six month period or

Possessing with intent to sell narcotics with a value of $75,000 or more

Class A-I felony

Court must set an indeterminate sentence (the court sets a minimum and maximum amount of imprisonment that may be required as opposed to a set term) with a:

minimum prison sentence of 15 years but as much as 25 years and

maximum of life

Up to $100,000

ENHANCED PENALTIES

New York law provides enhanced penalties for repeat drug offenders.  Generally, New York law punishes someone as a “second felony drug offender” if he or she stands convicted of a drug felony and was previously sentenced for a felony within the past 10 years, excluding time in prison (NY Penal 70.70 and 70.71).  Table 4 shows the enhanced prison penalties for these repeat offenders.  All sentences must include a period of post-release supervision.

Table 4:  Enhanced Prison Penalties for Second Felony Drug Offenders

Current Conviction

Penalty With Prior Felony Conviction

Penalty With Prior Violent Felony Conviction

A-I felony

12 to 24 years

15 to 30 years

A-II felony

6 to 14 years

8 to 17 years

B felony

2 to 12 years

6 to 15 years

C felony

1.5 to 8 years*

3.5 to 9 years

D felony

1.5 to 4 years*

2.5 to 4.5 years

E felony

1.5 to 2 years*

2 to 2.5 years

*For a class C, D, or E felony, the court can impose up to one year if, considering the crime's nature and circumstances and the defendant's history and character, imprisonment is necessary but the normal sentence would be unduly harsh.

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