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Criminal Possession of a Controlled Substance (Third Degree)

In its efforts to curtail the use of drugs by its citizens, New York has enacted a litany of laws to punish the illegal possession of controlled substances.

Criminal Possession of a Controlled Substance in the Third Degree is a violation of Article 220.16 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 13 subdivisions.

Criminal possession of a controlled substance in the third degree is charged as a Class B felony in New York, with penalties upon conviction of up to 25 years in prison and a fine of up to $30,000.

Attorney for Possession of a Controlled Substance in the Third Degree

If you were arrested for criminal possession of a controlled substance in the third degree in Manhattan or any of the five boroughs of New York City, you should contact a criminal defense attorney in Manhattan to help you fight the charges. We can explain the charges, the potential penalties, and important defenses that might exist in your case.

At Greco Neyland, PC, we represent people arrested on serious felony drug charges. We can help you 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 to help our 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 Possession of a Controlled Substance in the Third Degree in NY


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

N.Y. Penal Law, Part 3, Title M, Article 220.16 states that “a person is guilty of criminal possession of a controlled substance in the third degree when he (or she) knowingly and unlawfully possesses:

  • A narcotic drug with the intent to sell it (N.Y. P.L. § 220.16(1)); or
  • A stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide (LSD), with intent to sell it and has previously been convicted of an offense under N.Y. P.L. § 220, or the attempt or conspiracy to commit any such offense (N.Y. P.L. § 220.16(2)); or
  • A stimulant with intent to sell it and the stimulant weighs one gram or more (N.Y. P.L. § 220.16(3)); or
  • Lysergic acid diethylamide (LSD) with intent to sell it and the LSD weighs one milligram or more (N.Y. P.L. § 220.16(4)); or
  • A hallucinogen with the intent to sell it and the hallucinogen weighs twenty-five  milligrams or more (N.Y. P.L. § 220.16(5)); or
  • A hallucinogenic substance with the intent to sell it and the hallucinogenic substance weighs one gram or more (N.Y. P.L. § 220.16(6)); 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 one-eighth ounce or more (N.Y. P.L. § 220.16(7)); or
  • A stimulant and the stimulant weighs five grams or more (N.Y. P.L. § 220.16(8)); or
  • Lysergic acid diethylamide (LSD) and the LSD weighs five milligrams or more (N.Y. P.L. § 220.16(9)); or
  • A  hallucinogen and the hallucinogen weighs 125 milligrams or more (N.Y. P.L. § 220.16(10)); or
  • A hallucinogenic substance and the hallucinogenic substance weighs five grams or more (N.Y. P.L. § 220.16(11)); or
  • 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-half ounce or more (N.Y. P.L. § 220.16(12)); or
  • Phencyclidine (PCP) and the PCP weighs 1,250 milligrams or more (N.Y. P.L. § 220.16(13)).

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Definitions of Terms Related to Criminal Possession of a Controlled Substance in the Third 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, hallucinogenic substance, 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)).

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)).

“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 for Criminal Possession of a Controlled Substance in the Third 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 third degree, as defined in the criminal jury instructions for each offense.

Intent to Sell a Narcotic Drug

In order for a defendant to be found guilty of criminal possession of a controlled substance in the third degree (intent to sell a narcotic drug) under N.Y. P.L. § 220.16(1), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed (a specific narcotic drug) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed (a specific narcotic drug) on or about a certain date in a specific county; and
  • Knowingly and unlawfully possessed (a specific narcotic drug) on or about a certain date in a specific county with the intent to sell it.

N.Y. P.L. § 220.16(1) applies to offenses committed on or after Sept. 1, 1979.

Intent to Sell a Stimulant, Hallucinogens or LSD with a Prior Conviction

In order for a defendant to be found guilty of criminal possession of a controlled substance in the third degree (intent to sell a stimulant, hallucinogen, hallucinogenic substance or LSD with a prior conviction) under N.Y. P.L. § 220.16(2), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed (a specific stimulant, hallucinogen, hallucinogenic substance or LSD) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed (a specific stimulant, hallucinogen, hallucinogenic substance or LSD) on or about a certain date in a specific county; and
  • That the defendant knowingly and unlawfully possessed (a specific stimulant, hallucinogen, hallucinogenic substance or LSD) 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 (a specific crime). (See N.Y. Criminal Procedure Law § 200.60(3)).

N.Y. P.L. § 220.16(2) applies to offenses committed on or after Sept. 1, 1979.

Intent to Sell (Pure Weight Count)

In order for a defendant to be found guilty of criminal possession of a controlled substance in the third degree (intent to sell — pure weight count) under N.Y. P.L. §§ 220.16(3), 220.16(4), 220.16(5) or 220.16(6), a judge or jury must find that a person, beyond a reasonable doubt:

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

N.Y. P.L. §§ 220.16(3), 220.16(4), 220.16(5) and 220.16(6) apply to offenses committed on or after June 10, 1995.

Attempt to Sell One-Eighth Ounce of More Containing Methamphetamine

In order for a defendant to be found guilty of criminal possession of a controlled substance in the third degree (attempt to sell one-eighth ounce or more containing methamphetamine) under N.Y. P.L. § 220.16(7), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed one or more preparations, compounds, mixtures or substances containing methamphetamine, or its salts, isomers or salts of isomers;
  • Knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing methamphetamine, or its salts, isomers or salts of isomers;
  • That the aggregate weight of the substance was one-eighth ounce or more; and
  • That the defendant knowingly and unlawfully possessed the substance with the intent to sell it.

N.Y. P.L. § 220.16(7) applies to offenses committed on or after June 10, 1995.

Possession (Pure Weight Count)

In order for a person to be found guilty of criminal possession of a controlled substance in the third degree (pure weight count) under N.Y. P.L. §§ 220.16(8), 220.16(9), 220.16(10), 220.16(11) or 220.16(13), a judge or jury must find that a person, beyond a reasonable doubt:

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

N.Y. P.L. §§ 220.16(8), 220.16(9), 220.16(10), 220.16(11) and 220.16(13) apply to offenses committed on or after June 10, 1995.

Possession of a Half-Ounce or More Containing a Narcotic Drug

In order for a person to be found guilty of criminal possession of a controlled substance in the third degree (possession of a half-ounce or more containing a narcotic drug) under N.Y. P.L. §§ 220.16(12), a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed one or more preparations, compounds, mixtures or substances containing (one-half ounce or more of a specific narcotic drug) on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing (one-half ounce or more of a specific narcotic drug) on or about a certain date in a specific county;
  • That the aggregate weight of the substance weighed one-half ounce or more.

N.Y. P.L. § 220.16(12) applies to offenses committed on or after June 10, 1995.


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

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

  • One to nine years in prison, and/or
  • A fine of up to $30,000

Note: The maximum prison sentence that may be imposed for a Class B felony in New York is 25 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 two to 12 years. (N.L. P.L. § 70.70(3)(b)(i)).


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

New York Penal Law, Part 3, Title M, Article 220.16 — Criminal Possession of a Controlled Substance in the Third Degree — Read the New York State laws pertaining to criminal possession of a controlled substance in the third degree.

Jury Instructions for Criminal Possession of a Controlled Substance (Third Degree) — Attempt to Sell One-Eighth Ounce or More Containing Methamphetamine — 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 third degree (attempt to sell one-eighth ounce or more containing methamphetamine) under N.Y. P.L. § 220.16(1) committed on or after June 10, 1995.

Jury Instructions for Criminal Possession of a Controlled Substance (Third Degree) — Intent to Sell a Stimulant, Hallucinogens or LSD 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 third degree (intent to sell a stimulant, hallucinogens or LSD with a prior conviction) under N.Y. P.L. §§ 220.16(2) committed on or after Sept. 1, 1979.

Jury Instructions for Criminal Possession of a Controlled Substance (Third 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 third degree (illegal possession by pure weight count) under N.Y. P.L. §§ 220.16(3), 220.16(4), 220.16(5) or 220.16(6) committed on or after June 10, 1995.

Jury Instructions for Criminal Possession of a Controlled Substance (Third Degree) — Attempt to Sell One-Eighth Ounce or More Containing Methamphetamine — 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 third degree (attempt to sell one-eighth ounce or more containing methamphetamine) under N.Y. P.L. § 220.16(7) committed on or after June 10, 1995.

Jury Instructions for Criminal Possession of a Controlled Substance (Third Degree) — Possession (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 third degree (possession — pure weight count) under N.Y. P.L. §§ 220.16(8), 220.16(9), 220.16(10), 220.16(11) or 220.16(13) committed on or after June 10, 1995.

Jury Instructions for Criminal Possession of a Controlled Substance (Third Degree) — Attempt to Sell One-Eighth Ounce or More Containing Methamphetamine — 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 third degree (possession of a half-ounce or more containing a narcotic drug) under N.Y. P.L. § 220.16(12) committed on or after June 10, 1995.


Find an Attorney for Criminal Possession of a Controlled Substance in the Third Degree in New York City

If you were arrested in New York City for criminal possession of a controlled substance in the third degree under any subsection of N.Y. P.L. § 220.16, you need an experienced criminal defense attorney to help you mount an aggressive defense. 

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending all kinds of drug charges throughout New York. We can help you at 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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