A common felony offense charged by police and defended by New York criminal defense lawyers in the arena of controlled substance, narcotic and drug crimes, is Criminal Possession of a Controlled Substance in the 5th Degree pursuant to New York Penal Law section 220.06(5). A serious crime involving the possession of cocaine, CPCS 5th Degree is a “D” felony punishable from one year to two and a half years in state prison for a first time offender. Obviously, if you are a “predicate felon” you will face more time in state prison. Fortunately, due to changes in the Rockefeller Drug Laws, there are potential ways to avoid state prison that should be discussed with your New York criminal defense attorney.
Having briefly addressed the ramifications of New York Penal Law 220.06(5), the following entry will take a step back and (1) define the offense as it relates to cocaine possession and (2) discuss whether the 500 milligrams is an aggregate weight or a pure weight measurement.
Simply put, Criminal Possession of a Controlled Substance in the Fifth Degree, New York Penal Law 220.06(5) is defined as follows:
If one knowingly and unlawfully possesses 500 milligrams or more of cocaine, one is guilty of Criminal Possession of a Controlled Substance in the Fifth Degree.
First, while it appears straight forward, one must not only possess the cocaine, but must knowingly possess that cocaine and know that the weight is 500 milligrams or more. In other words, if the prosecution is unable to establish your knowledge that the weight of the drug was 500 milligrams or more, the case should be reduced (easier said than done). Again, it is not the mere knowledgeable possession, but knowledge of the weight as well. If only knowledge is established, but not weight or knowledge of that weight, then the appropriate charge is likely the misdemeanor crime of Criminal Possession of a Controlled Substance in the Seventh Degree (NY PL 220.03) as that is the lesser “default” crime for possession of any controlled substance.
The second issue briefly mentioned above will get a brief answer. 500 milligrams is a pure weight measurement. Therefore, if you possesses 600 milligrams, 500 of those milligrams must be cocaine and not some other mixture. Another way to look at this crime is that even if you possess 525 milligrams of cocaine, if the pure cocaine is less than 500 milligrams, then NY PL 220.06(5) is not the proper charge.
Unfortunately, in the realm of drug crimes, escaping one offense may still open the door to another charge. While there are too many scenarios to discuss in one blog entry, even if you were to possess 525 milligrams, of which only 300 is pure cocaine, you may still face additional crimes. If the prosecution can establish you had the intent to sell those drugs (maybe you had a scale, baggies, etc.), you may also face the significantly more serious crime of Criminal Possession of a Controlled Substance in the Second Degree, a “B” felony.
Prior to starting the New York criminal defense firm, the founding members of Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office. Jeremy Saland, one of our New York criminal defense lawyers, was also cross designated with the Office of the Special Narcotics Prosecutor on two large scale and multi-jurisdicitional narcotic investigations.
Saland Law PC represents clients in all criminal matters throughout the New York City region.