PL 220.16 and PL 220.06 v. PL 220.03: Difference Between Felony Intent to Sell Either Controlled Substances or Prescription Drugs and Misdemeanor Possession

The difference between possessing certain drugs in New York for personal use and possessing those same drugs with the intent to sell them is drastic. In fact, drastic would be an understatement. Ask any criminal lawyer in New York who handles narcotics or drug crimes and he or she will tell you the exact same thing. Whether the drug is molly, cocaine, heroin, ecstasy or whatever the drug du jour  might be, Criminal Possession of a Controlled Substance in the Seventh Degree is a misdemeanor with a potential sentence of up to one year in jail while Criminal Possession of a Controlled Substance in the Third Degree is a felony with a mandatory presumptive term of imprisonment of one year and as much as nine years. Simply, the misdemeanor, New York Penal Law 220.03, is not even in the same arena as the felony charge of New York Penal Law 220.16. For the purpose of this blog entry and for a general understanding of the elements of these crimes, PL 220.03 occurs where a person possesses a controlled substance while PL 220.16(1) is possession but also requires an intent to sell the cocaine, crack, heroin, molly, ecstasy or any other drug. A distinct crime, if you possess ketamine or oxycontin or Mesc, you will violate New York Penal Law 220.06(1), Fifth Degree Criminal Possession of a Controlled Substance. Before reading further, it is important to note that the possession of certain weights of drugs are automatically felonious. The relevant statutes and comparison here, as well as the review of a recent legal decision analyzing the difference, merely addresses the intent to sell element that enhances possession from a misdemeanor to a felony crime.

In People v. Nellons, 133 AD 3d 1258 (4th Dept. 2015), the People presented to the Grand Jury a case involving a vehicular police pursuit of a defendant who jumped from his moving car and fled. Upon the arrest of the defendant, the Grand Jury minutes reflected that the police recovered eight grams of cocaine in two bags. In order to establish that this possession was not a misdemeanor and was instead a felony, one of the officers provided testimony that based on his training and experience the amount of crack-cocaine possessed by this defendant was not consistent with personal use, but instead for sale. This officer further testified that drug users also possess utensils to consume the drugs in their possession. This defendant had none. Therefore, the Grand Jury was asked to consider the charge of PL 220.16(1), a class B felony, as opposed to the mere personal use charge of PL 220.03, a class A misdemeanor.

While the weight and amount of drugs possessed by a defendant may be per se a felony (for example, one cannot claim a kilo of cocaine is for personal use and 500 milligrams of pure cocaine is felonious whether for personal use or not), barring the crime being a strict liability weight offense, elements must exist reflecting that the crime involved and intent to sell. Here, the Court stated that:

“Although ‘defendant’s possession of a `substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . ., it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise’ (People v Sanchez, 86 NY2d 27, 35 [1995]; cf. People v Smith, 213 AD2d 1073, 1074 [1995]). We note that the ‘modest quantity of drugs’ in Sanchez was 3½ ounces of cocaine, far more than the drugs possessed by this defendant, which amounted to less than one third of an ounce. Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it (see generally People v Smith, 74 AD3d 1249, 1250 [2010]; People v Lamont, 227 AD2d 873, 875 [1996]).”

Do not think for a second that prosecutors or judges will give you, the accused, the benefit of the doubt. In fact, Saland Law PC represented a client who was charged with NY PL 220.16(1) and indicted by a Grand Jury where the evidence reflected that our client merely possessed two used syringes with heroin residue. Yes, residue! In our motion to dismiss, among many legal and factual arguments, we relied on some good old common sense. How can one sell used syringes with residue?! There is no market for residue that is unusable! Despite the judge not agreeing, the District Attorney’s Office came to their senses after reviewing our motion and the evidence and dismissed the felony charge of Third Degree Criminal Possession of a Controlled Substance.

No judge, jury, prosecutor or criminal defense lawyer will pat you on the back and say drugs are “OK”. However, if you are accused of a crime you have rights – good, bad or ugly. Moreover, the prosecution has a legal burden for a reason. Protect yourself. Read about the law. Learn about procedure, defenses and the crimes themselves.

Saland Law PC is a New York City based criminal defense firm representing those accused of drug crimes throughout New York City and numerous suburban counties. Established by two former Manhattan prosecutors, Saland Law PC maintains numerous informational websites and blogs to help educate clients to become active participants in their own legal defense and New York drug arrest.


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