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Criminal Possession of a Controlled Substance (Fourth Degree)

Without a prescription, the possession of a controlled substance is against the law in New York. Article 220 of the New York Penal Code addresses offenses involving controlled substances.

Among the crimes related to controlled substances in New York is Criminal Possession of a Controlled Substance in the Fourth Degree, a violation of Article 220.09 of the N.Y. Penal Code. A person who is knowingly and unlawfully in possession of a controlled substance may be charged under this statute, which contains 15 subdivisions.

Criminal possession of a controlled substance in the fourth degree is charged as a Class C felony in New York, with penalties upon conviction of up to 15 years in prison and a fine of up to $15,000.

Attorney for Drug Possession in the Fourth Degree in Manhattan

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

At Greco Neyland, PC, we represent people arrested on felony drug charges throughout the courtrooms in New York City. We conduct a thorough investigation and help you determine the best course of action to 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 put our clients at every stage of the case. 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 Drug Possession in the Fourth Degree in New York City


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Types of Charges for Criminal Possession of a Controlled Substance in the Fourth Degree

N.Y. Penal Law, Part 3, Title M, Article 220.09 states that “a person is guilty of criminal possession of a controlled substance in the fourth degree when he (or she) knowingly and unlawfully possesses:

  • One or more preparations, compounds, mixtures or substances containing a narcotic drug and (those) preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more (N.Y. P.L. § 220.09(1)); or
  • One or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of  isomers and (those) preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more (N.Y. P.L. § 220.09(2)); or
  • One or more preparations, compounds, mixtures or substances containing a narcotic  preparation and (those) preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more (N.Y. P.L. § 220.09(3)); or
  • A stimulant and said stimulant weighs one gram or more (N.Y. P.L. § 220.09(4)); or
  • Lysergic acid diethylamide (LSD) and the lysergic acid diethylamide weighs one milligram or more (N.Y. P.L. § 220.09(5)); or
  • A hallucinogen and the hallucinogen weighs twenty-five  milligrams or more (N.Y. P.L. § 220.09(6)); or
  • A hallucinogenic substance and the hallucinogenic substance weighs one gram or more (N.Y. P.L. § 220.09(7)); or
  • A dangerous depressant and the dangerous depressant weighs 10 ounces or more (N.Y. P.L. § 220.09(8)); or
  • A depressant and the depressant weighs two pounds or more (N.Y. P.L. § 220.09(9)); or
  • One or more preparations, compounds, mixtures or substances containing concentrated cannabis as defined in New York Public Health Law § 3302(4)(a) and those preparations, compounds, mixtures or substances are of an aggregate weight of one ounce or more (N.Y. P.L. § 220.09(10)); or
  • Phencyclidine (PCP or “angel dust”) and the PCP weighs 250 milligrams or more (N.Y. P.L. § 220.09(11)); or
  • Methadone and the methadone weighs 360 milligrams or more (N.Y. P.L. § 220.09(12)); or
  • Phencyclidine (PCP) and the PCP weighs 50 milligrams or more with intent to sell it and has  previously been convicted of an offense defined in N.Y. P.L. 220 or the attempt or conspiracy to commit any such offense (N.Y. P.L. § 220.09(13)); or
  • Ketamine and the ketamine  weighs  4,000 milligrams or more (N.Y. P.L. § 220.09(14)); or
  • One or more preparations, compounds, mixtures or substances containing gamma hydroxybutyric acid (GHB, or the “date rape” drug), as defined in N.Y. P.H.L. § 3306(e)(4) (Schedule I controlled substances), and those preparations, compounds, mixtures or substances are of an aggregate weight of 200 grams or more.” (N.Y. P.L. § 220.09(15))

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

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

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). (N.Y. P.L. § 220.00(5)).

“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)).

A “stimulant” means “any controlled substance listed in Schedule I(f) or Schedule II(d) of N.Y. P.L. § 3306. (N.Y. P.L. § 220.00(11)).

“Hallucinogen” means “any controlled substance listed in Schedule I(d) (5), (18), (19), (20), (21) and (22) of N.Y. P.L. § 3306.” (N.Y. P.L. § 220.00(9)). “Hallucinogenic substance” means “any controlled substance listed in Schedule I(d) of N.Y. P.L. § 3306, other than concentrated cannabis, LSD, or a hallucinogen.” (N.Y. P.L. § 220.00(10)).

“Dangerous depressant” means “any controlled substance listed in Schedule I(e)(2), (3), II(e), III(c)(3) or IV(c)(2), (31), (32), (40)” of N.Y. P.L. § 3306. (N.Y. P.L. § 220.00(12)). “Depressant” means “any controlled substance listed in Schedule IV(c) except (c)(2), (31), (32), (40) of N.Y. P.L. § 3306. (N.Y. P.L. § 220.00(13)).

“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)).


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

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

Aggregate Weight Counts

In order for a defendant to be found guilty of criminal possession of a controlled substance in the fourth degree (aggregate weight counts of one-eighth ounce or more containing a narcotic drug under N.Y. P.L. § 220.09(1), one-half ounce or more containing methamphetamine under § 220.09(2), two ounces or more containing a narcotic preparation under § 220.09(3), one ounce or more containing concentrated cannabis under § 220.09(10), or 200 grams or more containing GHB under § 220.09(15)), 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, the substance had a (specific weight in excess of the legal threshold).

N.Y. P.L. §§ 220.09(1), 220.09(2) and 220.09(3) apply to offenses committed on or after June 10, 1995, while N.Y. P.L. § 220.09(10) applies to offenses committed on or after Nov. 1, 1998 and N.Y. P.L. § 220.09(15) 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 fourth degree (pure weight counts of one gram or more of a stimulant under N.Y. P.L. § 220.09(4), one milligram or more of LSD under N.Y. P.L. § 220.09(5), 25 grams or more of a hallucinogen under N.Y. P.L. § 220.09(6), one gram or more of a hallucinogenic substance under N.Y. P.L. § 220.09(7), 10 or more ounces of a dangerous depressant under N.Y. P.L. § 220.09(8), two pounds or more of a depressant under N.Y. P.L. § 220.09(9), 250 milligrams or more of PCP under N.Y. P.L. § 220.09(11), 360 milligrams or more of methadone under N.Y. P.L. § 220.09(12), or 4,000 milligrams or more of ketamine under N.Y. P.L. § 220.09(14), 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. §§ 220.09(4), 220.09(5), 220.09 (6), 220.09 (7), 220.09 (8), 220.09 (9), 220.09 (11) and 220.09 (12) apply to offenses committed on or after June 10, 1995, while N.Y. P.L. § 220.09(14) 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.

Intent to Sell PCP with a Prior Conviction

In order for a defendant to be found guilty of criminal possession of a controlled substance in the fourth degree (intent to sell PCP with a prior conviction) under N.Y. P.L. § 220.09(13), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed phencyclidine (PCP) on or about a certain date in a specific county; and
  • Knowingly and unlawfully possessed PCP on or about a certain date in a specific county; and
  • The PCP weighed 50 milligrams or more; and
  • The defendant possessed the PCP with the intent to sell it; 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 PCP in any amount. (See N.Y. Criminal Procedure Law § 200.60(3)).  

N.Y. P.L. § 220.09(13) applies to offenses committed on or after June 10, 1995.


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

Criminal Possession of a Controlled Substance in the Fourth Degree is a Class C Felony in New York. According to N.Y. Penal Law, Part 2, Title E, Article 70.70(2)(a)(ii), and Article 80.00(1)(c)(iv), a Class C drug-related felony is punishable upon conviction by:

  • One to five-and-one-half years in prison; and/or
  • A fine of up to $15,000

Note: The maximum prison sentence that may be imposed for a Class C felony in New York is 15 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 eight years. (N.L. P.L. § 70.70(3)(b)(ii)).


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

New York Penal Law, Part 3, Title M, Article 220.09 — Criminal Possession of a Controlled Substance in the Fourth Degree — Read the New York State laws pertaining to criminal possession of a controlled substance in the fourth degree.

Jury Instructions for Criminal Possession of a Controlled Substance (Fourth Degree) with an Illegal Aggregate Weight — 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 fourth degree with an illegal aggregate weight committed on or after June 10, 1995 (for violations of §§ 220.09(1), (2) or (3)), on or after Nov. 1, 1998 (for violations of § 220.09(10)), or on or after Nov. 1, 2003 (for violations of § 220.09(15)).

Jury Instructions for Criminal Possession of a Controlled Substance (Fourth Degree) 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 fourth degree with an illegal pure weight committed on or after June 10, 1995 (for violations of §§ 220.09(4), 220.09(5), 220.09(6), 220.09(7), 220.09(8), 220.09(9), 220.09(11) and 220.09(12)), or on or after Jan. 22, 1998 (for violations of § 220.09(14)).

Jury Instructions for Criminal Possession of a Controlled Substance in the Fourth Degree (PCP with a Prior Conviction) — 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 fourth degree (PCP with intent to sell) for any offense commtted after June 10, 1995.


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

If you were arrested in New York City for criminal possession of a controlled substance in the fourth degree under any subsection of N.Y. P.L. § 220.09, you probably need a lawyer to assist you as you fight for the best possible result.

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending all kinds of drug charges. We work with our clients at each stage of the case to mount an aggressive defense.

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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