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Criminal Possession of a Controlled Substance (Second Degree)

Despite a reform of its tough drug laws in 2009, New York continues to show little sympathy for people convicted of drug crimes.

Possession of a large quantity of a controlled substance is not required in order to make an arrest for a serious drug felony in New York. In some cases, possession of less than a gram of contraband is enough to qualify for a prison sentence of up to 25 years.

Criminal Possession of a Controlled Substance in the Second Degree is a violation of Article 220.18 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 seven subdivisions.

Criminal possession of a controlled substance in the second degree is charged as a Class A-II felony in New York, with penalties upon conviction of up to 25 years in prison and a fine of up to $50,000.

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

If you were arrested for criminal possession of a controlled substance in the second 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 your 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 for drug crimes. We fight the charges aggressively at each stage of the case.

With Greco Neyland, PC as your advocate, you will have former prosecutors fighting on your behalf, so we know how the process works. 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 Second Degree in New York City


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

N.Y. Penal Law, Part 3, Title M, Article 220.21 states that “a person is guilty of criminal possession of a controlled substance in the first 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 four ounces or more (N.Y. P.L. § 220.18(1)); or
  • One or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers with intent to sell it and the preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more (N.Y. P.L. § 220.18(2)); or
  • A stimulant and the stimulant weighs 10 grams or more (N.Y. P.L. § 220.18(3)); or
  • Lysergic acid diethylamide (LSD) and the LSD weighs 25 milligrams or more (N.Y. P.L. § 220.18(4)); or
  • A  hallucinogen and the hallucinogen weighs 625 milligrams or more (N.Y. P.L. § 220.18(5)); or
  • A hallucinogenic substance and the hallucinogenic substance weighs 25 grams or more (N.Y. P.L. § 220.18(6)); or
  • Methadone and the methadone weighs 2,880 milligrams or more (N.Y. P.L. § 220.18(7)).

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

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

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)). A “narcotic drug” means “any controlled substance listed in Schedule I(b), I(c), II(b) or II(c) other than methadone.” (See N.Y. P.L. § 220.00(7) 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)).


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

Depending on how a substance is weighed, there are different elements that 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 second degree, as defined in the criminal jury instructions for each offense.

Aggregate Weight Count

In order for a person to be found guilty of criminal possession of a controlled substance in the second degree (aggregate weight count) under N.Y. P.L. §§ 220.18(1) or 220.18(2), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed one or more preparations, compounds, mixtures or substances containing a (narcotic drug or methamphetamine) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing a (narcotic drug or methamphetamine) on or about a certain date in a specific county; and
  • That the aggregate weight of the substance was (four or more ounces of a narcotic drug or two or more ounces of methamphetamine).

N.Y. P.L. §§ 220.18(1) applies to offenses committed on or after Dec. 14, 2004 and 220.18(2) applies to offenses committed on or after June 10, 1995.

Pure Weight Count

In order for a person to be found guilty of criminal possession of a controlled substance in the second degree (pure weight count) under N.Y. P.L. §§ 220.18(3), 220.18(4), 220.18(5), 220.18(6) or 220.18(7), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed (a specific stimulant, LSD, hallucinogen, hallucinogenic substance or methadone) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed (a specific stimulant, LSD, hallucinogen, hallucinogenic substance or methadone) on or about a certain date in a specific county; and
  • That the (specific stimulant, LSD hallucinogen, hallucinogenic substance or LSD) weighed (a specific weight in excess of the legal statutory threshold).

N.Y. P.L. §§ 220.18(3), 220.18(4), 220.18(5), 220.18(6) and 220.18(7) apply to offenses committed on or after June 10, 1995.


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

Criminal Possession of a Controlled Substance in the Second Degree is a Class A-II Felony in New York. According to N.Y. Penal Law, Part 2, Title E, Article 70.71(2)(b)(ii) and Article 80.00(1)(c)(ii), a Class A-II drug-related felony is punishable upon conviction by:

  • Three to 10 years in prison, and/or
  • A fine of up to $50,000

Note: The maximum prison sentence that may be imposed for a Class A-II felony in New York is life imprisonment.

If a person has a drug prior conviction, the prison sentence increases to six to 14 years. (N.L. P.L. § 70.71(3)(b)(ii)). If a person has a prior drug conviction and a prior violent felony offense, the prison sentence increases to eight to 17 years (N.Y. P.L. § 70.71(4)(b)(ii)).


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

New York Penal Law, Part 3, Title M, Article 220.18 — Criminal Possession of a Controlled Substance in the Second Degree — Read the New York State laws pertaining to criminal possession of a controlled substance in the second degree.

Jury Instructions for Criminal Possession of a Controlled Substance (Second Degree) — Illegal Possession by Aggregate Weight Count — 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 second degree (illegal possession by aggregate weight count) under N.Y. P.L. § 220.18(1) committed on or after Dec. 14, 2004 and under N.Y. P.L. § 220.18(2) committed on or after June 10, 1995.

Jury Instructions for Criminal Possession of a Controlled Substance (Second Degree) — Illegal Possession by Pure Weight Count —  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 second degree (illegal possession by pure weight count) under N.Y. P.L. §§ 220.18(3), 220.18(4), 220.18(5), 200.18(6) or 220.16(7) committed on or after June 10, 1995.


Find an Attorney for Controlled Substance Possession in the Second Degree in NY

If you were arrested in New York City for criminal possession of a controlled substance in the second degree under any subsection of N.Y. P.L. § 220.18, then contact an experienced criminal defense attorney to discuss your case.

The skilled criminal defense attorneys at Greco Neyland, PC fight drug charges throughout the courtrooms in New York City. We work hard to help you mount an aggressive defense to the charges.

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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