Misdemeanor Criminal Possession of a Controlled Substance in the Seventh Degree, Penal Law Section 220.03 - Information

NAME

Criminal Possession of a Controlled Substance in the Seventh Degree

NEW YORK PENAL CODE

220.03

OFFENSE LEVEL

Class A misdemeanor

DESCRIPTION OF CRIME

The possession of any amount (including residue) of any one of a number of specific named substances, but frequently heroin or cocaine.  Realize that after a certain weight threshold is met, it will become a felony.

Example: Being found in a car where a couple of almost empty bags of heroin are recovered will frequently result in all the people in the car being arrested for this offense.

JAIL SENTENCE RANGE

Nothing up to One Year at Rikers Island

POTENTIALLY AVAILABLE SETTLEMENT OPTIONS FOR A FIRST ARREST

(1) ACD (This is RARE) along with community service and/or counseling of some sort.

(2) Plea to disorderly conduct (non criminal offense) along with fine and/or community service and/or counseling

POTENTIAL COMPLICATING FACTORS

(1) Connection to more serious case. (For example, drug buyers are often arrested along with the the drug sellers.  Sometimes, the buyer's case will be treated as linked to the seller's case or in other cases, the Government may be seeking cooperation of the buyer against the seller, or the Government may seek a statement on the record from the buyer implicating the seller.

(2) Nature of the substance in question.  Sometimes, more exotic substances may be examined with more scrutiny than a "run-of-the-mill" substance.

(3) Lack of citizenship.  Non citizens need to be very very careful about how controlled substance charges are resolved.

(4) Employment - Certain jobs frown on even brushes with criminal cases involving drugs, regardless of outcome.

FACTORS TO CONSIDER

(1) Circumstances of Discovery of the Substances - Misdemeanor level drugs are usually pretty small and hard to spot.  This often calls into question how the police came to find the drugs in the first place.  It will be important to examine this because if the manner in which the police found  the drugs is determined to be illegal, the drugs will not be permitted to be used by the Government to prosecute the case.  This makes prosecuting a drug possession case difficult.

(2) Prior Criminal History

(3) Employment

(4) Family Court Involvement - A drug possession case can be a big problem for a parent who is engaged in proceedings in family court or involved in custody dispute during divorce proceedings.

(5) Housing - Certain Federally assisted housing can be influenced by drug related offenses.

(6) Eviction - Drug use and possession can be used in some circumstances as a ground to commence eviction proceedings.

(7) Student Loans

PRACTICE COMMENTS

Misdemeanor Treatment Courts are becoming more and more widespread, although perhaps most typically people who have a more substantial criminal history are considered.  The good news is that misdemeanor treatment court can offer an ultimate outcome that could include outright dismissal of the case.  In many first arrest situations, however, people often prefer to address substance abuse issues privately and try to resolve the cases with non-criminal offenses.

People often are under the mistaken impression that if the substance is not found "on them" that it will be impossible for the Government prove possession.  This is not true.  The law defines the term "possession" to include more than simple actual physical possession, and there are any number of circumstances where people can be considered to be in possession of items not in their pockets.  Items found in cars, for example, are frequently charged against all the occupants of the car.  Items found under beds and on bedside tables are frequently charged against the residents of the bedrooms.  While not having the items in your pocket or in your hand certainly may make it more difficult for the Government to show a connection between the accused and the items, it does not make it impossible.  

All you have to do is think about a pen that you might have in your pocket.  If you take the pen out of your pocket and put it on a desk in front of you, it is still your pen.  It might be harder to prove that it is your pen, but it might not be impossible either.  It will depend on the proof.  If someone testifies that he saw you put the pen on the desk that would be evidence that it was your pen.  If the desk is your desk inside your house, and you are sitting behind the desk when the pen is observed there, and there is a piece of paper on the desk with handwriting on it in the same ink that came from the pen and the handwriting is your signature, then that would also be evidence that the pen is yours.

In the same way can the Government seek to prove possession of drugs that were not found in someone's actual physical possession.

 

 

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