Class-A Felony Narcotics Defense Lawyer Explains Penal Law Sections 220.21 and 220.43 (Criminal Sale and Criminal Possession of a Controlled Substance in the First Degree)

Posted By Galluzzo and Johnson LLP || 24-May-2011

The most serious drug-related felonies in New York state law are Operating as a Major Trafficker (Penal Law Section 220.77, the "Kingpin" Statute), Criminal Possession of a Controlled Substance in the First Degree (Penal Law Section 220.21) and Criminal Sale of a Controlled Substance in the First Degree (Penal Law Section 220.43). As Class-A1 felonies, they are punishable by a minimum of 8 years in state prison for first-time offenders, and by as many as 20 years. (Unfortunately, people charged with these crimes are ineligible for Judicial Diversion- the program whereby drug offenders are given an opportunity to attend a drug rehabilitation treatment program instead of prison.)

For more on the "Kingpin" statute, or Operating as a Major Trafficker (Penal Law Section 220.77), click here.

A person is guilty of Criminal Possession of a Controlled Substance in the First Degree when he or she knowingly and unlawfully possesses:

1) one or more preparations, compounds, mixtures or substances containing a narcotic drug (which includes cocaine or heroin, for example) and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more; or

2) methadone and said methadone weighs five thousand seven hundred sixty milligrams or more.

(An ounces to grams converter is available here).

Sometimes, in First Degree possession cases, multiple individuals are charged with the same crime at the same time for possessing the same large quantity of narcotics. Typically, the prosecutor will use one of the statutory presumptions available to him under Penal Law Section 220.25 – such as the “automobile presumption” (subsection 1) or the“room presumption” (subsection 2). However, both of these presumptions are rebuttable, and a skilled defense attorneycan refute them with evidence and arguments that the accused was unaware of the presence of the narcotics in the automobile he was riding in or the room he was sitting in.

A person is guilty of Criminal Sale of a Controlled Substance in the First Degree when he knowingly and unlawfully sells:

1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more; or

2) methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

As you can see, the minimum quantities for the sale charges are smaller than the minimum quantities for the first-degree possession charges.

In our experience, an arrest for a First Degree sale usually suggests a long-term investigation by undercover narcotics officers. In those cases, an undercover officer has probably made multiple purchases from an accused (in order to gain his trust) before attempting to purchase a large enough quantity to qualify for an A-1 charge. We find, however, that sometimes people are arrested and accused for these crimes even when they played a small or non-existent role in the sale(s). These individuals can have very defensible cases. A skilled defense attorney can also challenge the credibility of the confidential informant or undercover officer through a variety of other cross-examination techniques, as well.

In a nutshell, these cases carry very stiff penalties but can be defeated with the assistance of a defense attorney that understands how to win them. If you or a loved one have been arrested for one of these crimes, then you should strongly consider hiring the experienced criminal defense attorneys at Galluzzo & Arnone LLP. Their team of three former senior Manhattan prosecutors understands how these sorts of cases are constructed by the police, and thus, they have unique insight into how best to defend against them. Give them a call to schedule an appointment today: 212-918-4661.

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