There are serious penalties for drug possession. Under New York and federal law, it is illegal to possess, distribute, or use illicit drugs. If death or severe bodily injury resulted from that drug use, the penalties can be even harsher.

A felony drug possession conviction is a permanent mark on your record. It will follow you everywhere you go. Employers will be hesitant to hire you because they don’t want a “problem” employee, and many won’t even consider you because of your criminal record. Landlords may not rent to you because they don’t want drug-related activity on their property.

It can hold you back from many of the good things that you would like to do in your life. But as bad as that is, it’s even worse if you don’t have an experienced, knowledgeable lawyer on your side.

Overview of Felony Possession of Drugs Offenses

Felony drug possession can be tried at the state or federal level – or both. The laws are written to combat drug use, distribution, and abuse. 

Under federal law drugs are classified by schedules:

  • Schedule I: Potential for abuse HIGH. No currently accepted medical value in the U.S. These are considered dangerous drugs. Includes Heroin, Bath Salts, Marijuana, LSD. Ecstasy, Methaqualone.
  • Schedule II: Potential for abuse HIGH. Currently some medical value in the U.S. Includes Morphine, Percocet, Methamphetamines, PCP, Codeine, OxyContin, Cocaine, and Fentanyl.
  • Schedule III: Potential for abuse or safety concerns MID HIGH but lower than schedule I and II. Currently have accepted medical use in the U.S. Includes Anabolic steroids, some appetite suppressants, hydrocodone, ketamine, and some barbiturates.
  • Schedule IV: Potential for abuse or dependence LOW. Includes Ativan, Xanax, Ambien, and Valium.
  • Schedule V: Potential for abuse VERY LOW lower than schedule IV. Some with narcotics may have a lower quality. Include Prescription cough medications that contain codeine.

While drug trafficking is the most common federal drug crime, felony possession of drugs is also a very common charge. When a person is charged with drug possession, the amount of controlled substance that they had in possession will determine in large part whether the case will be tried in state or federal court. Typically, if the arresting officer is federal, then the case will fall to the federal court. However, local or state police can arrest a person and they can still end up in federal court. But usually, if the arresting officers were state or local, then the case is tried as a local crime in a local court.

Federal Felony Possession of Drugs Offenses

Under federal law, Title 21 United States Code Controlled Substances Act, it is illegal for a person to knowingly or intentionally possess controlled substances unless they were obtained by a prescription or from a practitioner such as a doctor. In Part D – Offenses and Penalties, the law also states:

“It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30-day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product, except that, of such 9 grams, not more than 7.5 grams may be imported by means of shipping through any private or commercial carrier or the Postal Service.”

This means no illegal drugs and no prescription medications without a valid prescription made out to the person whose possession it is in.

New York Felony Possession of Drugs Offenses

Under New York law (Article 220 – NY Penal Law) there are six offenses for possession of controlled substances. Five of these are felonies; only one is a Class A misdemeanor. The misdemeanor charge acts as a baseline for drug possession and you are likely to face this charge if you possess a controlled substance in small amounts without intent to sell.

Possession of drug charge hinges on two factors. The person in possession of the drugs must knowingly possess them and unlawfully or have no legal right to have them in their possession.

From that point, the misdemeanor crime becomes a felony when the weight of drugs in your possession exceeds the statutory threshold. The class of felony is determined by the type and amount of drug involved. If the particular drug you possess exceeds the law’s minimum amount, the charge becomes a felony and can increase depending on higher amounts and previous drug convictions.

Section 3306 of the New York Public Health Law lists all controlled substances – it is extensive. Some of the drugs on the list include:

  • Cocaine – any form
  • Codeine 
  • Heroin
  • Fentanyl 
  • Oxycodone
  • LSD
  • Methamphetamine
  • Morphine
  • Vicodin 

Other charges can be added to the felony possession of drugs charge. For instance, if you have just half an ounce of a narcotic preparation you may also get charged with intent to distribute because that is all that is needed to look like you were going to sell drugs.

Penalties for Federal Felony Possession of Drugs

The penalties for federal felony possession of drugs can be very stringent. Many carry a maximum of life in prison.

  • First Offense: Minimum 5 years in prison, maximum 40 years in prison. If death or serious injury occurred, minimum of 20 years in prison, maximum life in prison. Maximum fine if an individual is $5 million, a maximum fine if not an individual is $25 million.
  • Second Offense: Minimum 10 years in prison, maximum life in prison. If death or serious injury, life imprisonment. Maximum fine if an individual is $8 million, a maximum fine if not an individual is $50 million.
    • Possession of:
      • Cocaine -Schedule II – 500 – 4999 gm mixture
      • Cocaine Base – Schedule II – 28-279 gm mixture
      • Fentanyl – Schedule II – 40-399 gm mixture
      • Fentanyl Analogue (Schedule I) – 10 – 99 gm mixture
      • Heroin (Schedule I) – 100 – 999 gm mixture
      • LSD (Schedule I) – 1 – 9 gm mixture
      • Methamphetamine (Schedule II) – 5 – 49 gm pure or 50 – 499 gm mixture
      • PCP (Schedule II) – 10 – 99 gm pure or 100 – 999 gm mixture
  • First Offense: Minimum 10 years in prison, maximum life in prison. If death or serious injury occurred, minimum of 20 years in prison, maximum life in prison. Maximum fine if an individual is $10 million, a maximum fine if not an individual is $50 million.
  • Second Offense: Minimum 20 years in prison, maximum life in prison. If death or serious injury, life imprisonment. Maximum fine if an individual is $20 million, a maximum fine if not an individual is $75 million.
    • Possession of:
      • Cocaine -Schedule II – 5 kgs or more mixture
      • Cocaine Base – Schedule II – 280 gm or more
      • Fentanyl – Schedule II – 400 gm or more mixture
      • Fentanyl Analogue (Schedule I) – 100 gm or more mixture
      • Heroin (Schedule I) – 1 kg or more mixture
      • LSD (Schedule I) – 10 gm or more mixture
      • Methamphetamine (Schedule II) – 50 gm or more of pure Methamphetamine or 500 gm or more mixture
      • PCP (Schedule II) – 100 gm or more of pure PCP or 1 kg or more of mixture
  • 2 or More Prior Offenses: Life in prison. Maximum fine if an individual is $20 million, maximum fine if not an individual is $75 million.
    • Possession of:
      • Cocaine -Schedule II – 5 kgs or more mixture
      • Cocaine Base – Schedule II – 280 gm or more
      • Fentanyl – Schedule II – 400 gm or more mixture
      • Fentanyl Analogue (Schedule I) – 100 gm or more mixture
      • Heroin (Schedule I) – 1 kg or more mixture
      • LSD (Schedule I) – 10 gm or more mixture
      • Methamphetamine (Schedule II) – 50 gm or more of pure Methamphetamine or 500 gm or more mixture
      • PCP (Schedule II) – 100 gm or more of pure PCP or 1 kg or more of mixture
  • First Offense: Maximum 20 years in prison. If death or serious injury occurred, minimum of 20 years in prison, maximum life in prison. Maximum fine if an individual is $1 million, a maximum fine if not an individual is $5 million.
  • Second Offense: Maximum 30 years in prison. If death or serious injury, life in prison. Maximum fine if an individual is $2 million, a maximum fine if not an individual is $10 million.
    • Possession of:
      • Other schedule I and II drugs – Any Amount
      • Any drug product containing Gamma Hydroxybutyric – Any Amount
      • Flunitrazepam (Schedule IV) – 1 gm or less
  • First Offense: Maximum 10 years in prison. If death or serious injury, Maximum 15 years. Maximum fine if an individual is $500,000, a maximum fine if not an individual $2.5 million.
  • Second Offense: Maximum 20 years in prison. If death or serious injury, Maximum 30 years. Maximum fine if an individual is $1 million, a maximum fine if not an individual is $5 million.
    • Possession of:
      • Other Schedule III Drugs – Any Amount
  • First Offense: Maximum 5 years in prison. Maximum fine if an individual is $250,000, a maximum fine if not an individual is $1 million.
    • Possession of:
  • Second Offense: Maximum 10 years in prison. Maximum fine if an individual is $500,000, a maximum fine if not an individual is $2 million.
    • Possession of:
      • All Other Schedule IV Drugs – Any Amount (excluding Flunitrazepam , 1 gram or more)
  • First Offense: Maximum 1 year in prison. Maximum fine if an individual is $100,000, a maximum fine if not an individual is $250,000.
  • Second Offense: Maximum 4 years in prison. Maximum fine if an individual is $200,000, a maximum fine if not an individual is $500,000.
    • Possession of:
      • All Schedule V Drugs – Any Amount

The New Marijuana Laws in New York

In July 2021, the Marijuana Regulation and Taxation Act (MRTA) was signed by Governor Cuomo legalizing adult-use marijuana or cannabis in the state of New York. At the same time, it also created a new Office of Cannabis Management (OCM) which is under the governance of a Cannabis Control Board which is designed to oversee and implement the law. It will be the responsibility of the OCM to develop regulations for cannabis-related businesses as well as the issuance of licenses to those businesses.

These are the high points of the new law:

  • New York adults, 21-year-old and older are legally able to obtain, possess, and transport a maximum of 3 ounces of cannabis or marijuana and a maximum of 24 grams of cannabis oil.
  • Some parts of the law will go into effect 18 months after the first legal recreational sale of marijuana in New York (the earliest for this is 2023).
    • Adults will be allowed to store a maximum of five pounds of marijuana in their homes.
    • Adults will be allowed to grow marijuana plants in their homes: a maximum of three mature plants and three immature plants if they are alone and a maximum of six mature plants and six immature plants if there are several people living in the household.
  • Cities have the legal authority to prohibit recreational sales, but counties do not.
  • New York adults can smoke marijuana anywhere that they can smoke cigarettes and cigars.
  • Smoking in a car – even if it is parked – is prohibited.
  • Marijuana conviction records will be expunged.

The penalties for possession of marijuana that exceed the legal limit have shifted as a result of the new law – https://ypdcrime.com/penal.law/marijuana-penalties.php

  • 4 to 8 ounces: Maximum one year in jail and/or maximum $1,000 fine.
  • 8 to 16 ounces: Minimum 1year in jail, maximum 4 years in jail, and/or maximum $5,000 fine. Second offense jail time is mandatory.
  • 16 ounces to 10 pounds: Minimum 1 year in jail, maximum 7 years in jail, and/or maximum $5,000 fine. Second offense jail time is mandatory.
  • 10 pounds or more: Minimum 1 year in jail, maximum 15 years in jail, and or maximum $5,000 fine. Second offense jail time is mandatory.

Penalties for Felony Possession of Drugs in New York

All other drug possession charges are felonies and carry much more serious penalties. 

  • Class E Felony (Criminal possession of marijuana in the third degree)
    • Maximum 4 years prison
    • Maximum $1,000 fine
  • Class D Felony (Criminal possession of a controlled substance in the fifth degree, criminal possession of marijuana in the second degree)
    • Maximum 7 years prison
    • Maximum $5,000 fine
  • Class C Felony (Criminal possession of a controlled substance in the fourth degree, criminal possession of marijuana in the first degree)
    • Maximum 15 years prison
    • Maximum $15,000 fine
  • Class B Felony (Criminal possession of a controlled substance in the third degree)
    • Maximum life in prison
    • Maximum $30,000 fine
  • Class A-II Felony (Criminal possession of a controlled substance in the second degree)
    • Maximum life in prison
    • Maximum $50,000 fine
  • Class A-I Felony (Criminal possession of a controlled substance in the first degree)
    • Maximum life in prison
    • Maximum $100,000 fine

Defenses for Felony Possession of Drugs 

There are two recognized and accepted defenses for possession of drugs under New York law.

  • The specific drug was a residual amount of a controlled substance or was on a hypodermic needle or in a hypodermic syringe.
  • The specific drug was discovered as a result of the accused seeking emergency health care for himself or herself or someone else because of alcohol or drug overdose or any medical emergency that was life-threatening.

It is important to remember that you are always innocent until proven guilty. That puts the burden of proof on the prosecution to prove beyond a reasonable doubt that you are guilty of the crimes of which you have been charged.

Do not give a confession to the police or even a statement. It can and will be used against you to prove your guilt when you get to court. You have a right to remain silent – use it. You are given the right to an attorney – take it and hire an attorney immediately. The criminal law system is nothing that an untrained person should try to navigate. With the widespread “war on drugs” and general public perception of drugs, a felony drug possession charge will cast a dark light on you.

However, having an attorney who understands how the court system works and has successfully represented many defendants on a variety of criminal charges, is invaluable. What’s more, being charged with felony possession of drugs is a serious offense at both the state and federal levels. There are certain challenges that you will encounter that only an experienced criminal defense attorney can manage. Attorney Igor Litvak has that experience, let attorney Litvak use it to work for you. Call the Litvak Law Firm at (718) 989-2908 today.