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Criminal Possession of a Controlled Substance (Fifth Degree)

In 2009, New York reformed its laws pertaining to drugs, including controlled substances and marijuana. Article 220 of the New York Penal Code addresses offenses involving controlled substances, while Article 221 addresses marijuana-related offenses.

The possession or sale of a controlled substance (without a doctor’s prescription) is illegal in New York. A violation of the laws related to controlled substances may be charged as a misdemeanor or a felony, depending on the type and amount of drugs in question, but most violations are felonies.

Among the crimes related to controlled substances in New York is Criminal Possession of a Controlled Substance in the Fifth Degree, a violation of Article 220.06 of the N.Y. Penal Code. A person who is knowingly in possession of any controlled substance with intent to sell it or a person who possesses a specific amount of certain other drugs may be charged under this statute, which contains eight subdivisions.

Criminal possession of a controlled substance in the fifth degree is charged as a Class D felony in New York, with penalties upon conviction of up to seven years in prison and a fine of up to $5,000.

Attorney for Criminal Possession of a Controlled Substance in the Fifth Degree in Manhattan

If you were arrested for criminal possession of a controlled substance in the fifth degree in Manhattan or any of the five boroughs of New York City, you should contact an experienced criminal defense lawyer in Manhattan to assist you with the case. A qualified attorney will be able to explain the drug charge and possible defenses that might apply.

At Greco Neyland, PC, we represent people arrested on drug charges. We thoroughly investigate the facts of each case and mount an aggressive defense.

With Greco Neyland, PC as your advocate, you will have former prosecutors fighting on your behalf, so we know how the process works. We use our knowledge of criminal legal procedure to help our clients fight for the best possible result. We represent clients in Manhattan (New York County), Brooklyn (Kings County), The Bronx, and the other boroughs of New York City. Call us today at (212) 951-1300 to schedule a free consultation.


Information about Criminal Possession of a Controlled Substance in the Fifth Degree in New York City


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Types of Charges for Possession of a Controlled Substance in the Fifth Degree

N.Y. Penal Law, Part 3, Title M, Article 220.06 states that “a person is guilty of criminal possession of a controlled substance in the fifth degree when he (or she) knowingly and unlawfully possesses”:

  • A controlled substance with intent to sell it (N.Y. P.L. § 220.06(1)); or
  • One or more preparations, compounds, mixtures or substances containing a narcotic preparation (with) an aggregate weight of one-half ounce or more (N.Y. P.L. § 220.06(2)); or
  • Phencyclidine, (also known as PCP or “angel dust”) (that) weighs 50 milligrams or more (N.Y. P.L. § 220.06(3)); or
  • One or more preparations, compounds, mixtures or substances containing concentrated cannabis as defined in N.Y. Public Health Law § 3302(4)(a) … (that) are of an aggregate weight of one-fourth ounce or more (N.Y. P.L. § 220.06(4)); or
  • Cocaine and (that) weighs five hundred milligrams or more(N.Y. P.L. § 220.06(5)); or
  • Ketamine (an anesthetic which is also used as a pain killer) (that) weighs more than 1,000 milligrams (N.Y. P.L. § 220.06(6)); or
  • (Any amount of) ketamine and has previously been convicted of possession or the attempt to commit possession of ketamine in any amount (N.Y. P.L. § 220.06(7)); or
  • One or more preparations, compounds, mixtures or substances containing gamma-hydroxybutyric acid (GHB, or the “date-rape” drug), as defined in N.Y. Public Health Law § 3306(4)(e), that are of an aggregate weight of 28 grams or more.” (N.Y. P.L. § 220.06(8)).

Note: Among the lesser offenses under N.Y. P.L. § 220 are Criminal Possession of a Controlled Substance in the Seventh Degree (§ 220.03, a Class A misdemeanor), Criminal Possession of a Hypodermic Needle (§ 220.45, a Class A misdemeanor), Criminal Injection of a Narcotic Drug (§ 220.46, a Class E felony) and Criminal Possession of Precursors of Controlled Substances (§ 200.60, a Class E felony).


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Definitions of Terms Related to Criminal Possession of a Controlled Substance in the Fifth Degree

Several key terms in the law are legally defined in the statutes, including possess, knowingly, unlawfully, controlled substance, sell, intent, narcotic preparation and aggregate weight.

Under the law, “possess” means to have physical possession or otherwise to exercise dominion or control over tangible property (N.Y. P.L. Part 1, Title A, Article 10.00(8)).

Possession may be “actual” or “constructive.” Actual possession occurs when the police discover a weapon on a person or his or her belongings and no one else has equal access to it. Constructive possession occurs when more than one person has access to a weapon, such as a weapon in a drawer or glove box of a vehicle when more than one person has access to it.

A person “knowingly” possesses a controlled substance when that person is “aware” that he or she is in possession of a controlled substance. (N.Y. P.L. Part 1, Title B, Article 15.05(2)).

A person “unlawfully” possesses a controlled substance when that person has no legal right to possess it. (See N.Y. P.L. § 220.00(2) and N.Y. Public Health Law § 3396(1)). Under the law, with certain exceptions not applicable here, a person has no legal right to possess a controlled substance.

A “controlled substance” is defined as “any substance listed in Schedule I, II, III, IV or V of N.Y. P.H.L. § 3306 other than marijuana, but including concentrated cannabis under § 3302(4)(a).

“Sell” means “to sell, exchange, give or dispose of to another.” (See N.Y. P.L. § 220.00(1) and People v. Samuels, 90 N.Y.2d 20 (2002)).

“Intent” means “conscious objective or purpose.” Thus, a person possesses (a specific controlled substance) with intent to sell it when his or her conscious objective or purpose is to sell the (specific controlled substance). (N.Y. P.L. § 15.05(1)).

“Narcotic preparation” means any controlled substance listed in Schedule II(b-1) or Schedule III(d) or III(e) of the New York statutes. (See N.Y. P.L. § 220.00(8) and N.Y. Public Health Law, Title 1, Article 33, § 3306).

“Aggregate weight” refers to the weight of the substance which contains the (specific controlled substance), irrespective of the amount of the (specific controlled substance) actually in the substance. (See People v Mendoza, 81 NY2d 963, 965 (1993)).


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Elements of Criminal Possession of a Controlled Substance in the Fifth Degree

Several different elements that must be proved beyond any reasonable doubt in order for a person to be found guilty of possession of a controlled substance in the fifth degree, as defined in the criminal jury instructions for each offense.

Intent to Sell

In order for a defendant to be found guilty of criminal possession of a controlled substance in the fifth degree with intent to sell under N.Y. P.L. § 220.06(1), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a specific controlled substance on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed a specific controlled substance on or about a certain date in a specific county; and
  • Possessed the specific controlled substance with the intent to sell it.

N.Y. P.L. § 220.06(1) applies to offenses committed on or after Sept. 1, 1979.

Aggregate Weight Counts

In order for a defendant to be found guilty of criminal possession of a controlled substance in the fifth degree (aggregate weight counts of one-half ounce or more of a narcotic preparation under N.Y. P.L. § 220.06(2), one-fourth ounce or more of concentrated cannabis under § 220.06(4), or 28 grams or more of GHB under § 220.06(8)), a judge or jury must find that a person, beyond a reasonable doubt

  • Possessed one or more preparations, compounds, mixtures or substances containing (a specific controlled substance) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing (a specific a specific controlled substance) on or about a certain date in a specific county; and
  • That in aggregate, such substance had a (specific weight in excess of the legal threshold).

N.Y. P.L. § 220.06(2) and N.Y. P.L. § 220.06(4) apply to offenses committed on or after June 10, 1995, while N.Y. P.L. § 220.06(8) applies to offenses committed on or after Nov. 1, 2003.

Pure Weight Counts

In order for a defendant to be found guilty of criminal possession of a controlled substance in the fifth degree (pure weight counts of 50 milligrams or more of PCP under N.Y. P.L. § 220.06(3), 500 milligrams or more of cocaine under § 220.06(5), or more than one gram of ketamine under § 220.06(6)), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed (a specific controlled substance) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed (a specific a specific controlled substance) on or about a certain date in a specific county; and
  • That the (specific controlled substance) had (a specific weight) in violation of the legal threshold.

N.Y. P.L. § 220.06(3) and N.Y. P.L. § 220.06(5) apply to offenses committed on or after June 10, 1995, while N.Y. P.L. § 220.06(6) applies to offenses committed on or after Jan. 22, 1998. The statute was revised on April 4, 2003 to add ketamine to the list of illegal drugs.

Ketamine with a Prior Conviction

In order for a defendant to be found guilty of criminal possession of a controlled substance in the fifth degree (ketamine with a prior conviction) under N.Y. P.L. § 220.06(7), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed ketamine on or about a certain date in a specific county; and
  • Knowingly and unlawfully possessed ketamine on or about a certain date in a specific county; (and)
  • (If the defendant denies or says nothing about a previous conviction,) that the defendant has previously been convicted of possession or the attempt to commit possession of ketamine in any amount. (See N.Y. Criminal Procedure Law § 200.60(3)).  

N.Y. P.L. § 220.06(7) applies to offenses committed on or after Jan. 22, 1998.


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Penalties for Criminal Possession of a Controlled Substance in the Fifth Degree

According to N.Y. Penal Law, Part 2, Title E, Article 70.70(2)(a)(iii), Criminal Possession of a Controlled Substance in the Fifth Degree is a Class D Felony in New York. A Class D drug-related felony is punishable upon conviction by:

  • One to two-and-one-half years in prison, and/or
  • A fine of up to $5,000

Note: The maximum prison sentence that may be imposed for a Class D felony in New York is seven years.

A person with no prior conviction may be able to avoid prison and receive a sentence of probation. (N.Y. P.L. § 70.70(2)(b)). On the other hand, if a person has a prior conviction, the prison sentence increases to one-and-one-half to four years. (N.L. P.L. § 70.70(3)(b)(iii)).


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Resources Related to Criminal Possession of a Controlled Substance in the Fifth Degree

New York Penal Law, Part 3, Title M, Article 220.06 — Criminal Possession of a Controlled Substance in the Fifth Degree — Read the New York State laws pertaining to criminal possession of a controlled substance in the fifth degree.

Jury Instructions for Criminal Possession of a Controlled Substance with Intent to Sell — Visit the website of the New York State Unified Court System to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal possession of a controlled substance in the fifth degree with intent to sell for any offense committed on or after Sept. 1, 1979.

Jury Instructions for Criminal Possession of a Controlled Substance (Fifth Degree) with an Illegal Aggregate Weight — Visit the website of the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal possession of a controlled substance in the fifth degree with an illegal aggregate weight committed on or after June 10, 1995 (for violations of § 220.06(3) and § 220.06(5)) or on or after Jan. 22, 1998 (for violations of § 220.06(6)).

Jury Instructions for Criminal Possession of a Controlled Substance with an Illegal Pure Weight — Visit the website of the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal possession of a controlled substance in the fifth degree with an illegal pure weight committed on or after June 10, 1995 (for violations of § 220.06(2) and § 220.06(4)) or on or after Nov. 1, 2003 (for violations of § 220.06(8)).

Jury Instructions for Criminal Possession of a Controlled Substance (Ketamine with a Prior Conviction) (N.Y. P.L. § 220.06(7)) — Visit the website of the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal possession of a controlled substance in the fifth degree with intent to sell for any offense committed on or after Jan. 22, 1998.


Find an Attorney for Drug Possession in the Fifth Degree in New York City

If you were arrested in New York City for criminal possession of a controlled substance in the fifth degree under any subsection of N.Y. P.L. § 220.06, you need an experienced criminal defense attorney to help you fight for the best result.

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending all kinds of drug charges. We work with you during each stage of the case.

We serve clients throughout the five boroughs of New York City, including Manhattan, Brooklyn, and The Bronx. Contact the dedicated lawyers at Greco Neyland, PC today by calling (212) 951-1300 to schedule a free consultation about your drug-related charge.

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