Charged With Drug Possession in Suffolk or Nassau County?
You’ve been found in possession of an illegal substance, so now what? Despite the commonality of illegal drug use, in New York drug possession is considered to be a crime. Most drug crimes are felonies, but even a conviction of misdemeanor charge could send you to prison and leave you with a lasting record. The State of New York separates drug possession crimes into two categories: controlled substance and marijuana-related offenses. Despite the different categories, the mandatory requirements for a conviction of actual possession of a controlled substance or a marijuana-related offense remain the same.
Conviction for “Actual” Possession
In order for the State of New York to convict you of actual possession, the prosecution must prove beyond a reasonable doubt that:
- The substance was either within your physical possession (on your person) or within your control (constructive possession)
- It was a controlled substance
- You were aware that you possessed it and
- The possession was unlawful
Conviction for “Constructive” Possession
The State of New York can also charge you with constructive possession, provided that you had control over the individual who possessed the drugs or the place in which they were found. This can be proven even if the defendant is not physically present at the time that the drugs were found.
Which Drugs are considered to be Controlled Substances in New York?
Under New York law, illegal drug possession may refer to a number of drugs labeled controlled substances. These substances include:
- Crack Cocaine
- Club Drugs
- Illegally obtained prescription narcotics
- Prescription narcotics used in a way other than as indicated by a doctor
The possession of drug paraphernalia including syringes, cocaine pipes, and scales is also illegal and could lead to additional charges if the police find any incriminating evidence that you have manufactured or trafficked the substance in question.
There are six offenses related to possession of a controlled substance:
- Criminal possession of a controlled substance in the seventh degree
- Criminal possession of a controlled substance in the fifth degree
- Criminal possession of a controlled substance in the fourth degree
- Criminal possession of a controlled substance in the third degree
- Criminal possession of a controlled substance in the second degree
- Criminal possession of a controlled substance in the first degree
In addition to the above offenses, there are six separate offenses for possession of marijuana. These include:
- Unlawful possession of marijuana — knowingly and unlawfully possessing marijuana
- Criminal possession of marijuana in the fifth degree — knowingly and unlawfully possessing marijuana in a public place and burning or displaying it in public view. This involves marijuana with a cumulative weight of at least 25 grams.
- Criminal possession of marijuana in the fourth degree — knowingly and unlawfully possessing marijuana with an aggregate weight of at least 2 ounces.
- Criminal possession of marijuana in the third degree — knowingly and unlawfully possessing at least one preparation containing marijuana with an aggregate weight of at least 8 ounces.
- Criminal possession of marijuana in the second degree — knowingly and unlawfully possessing at least one preparation containing marijuana with an aggregate weight of at least 16 ounces.
- Criminal possession of marijuana in the first degree — knowingly and unlawfully possessing at least one preparation containing marijuana with an aggregate weight of at least 10 pounds.
Drug Possession Defenses in New York
Despite the severe penalties for drug possession, there are several defenses that may be available to challenge the charges:
Not an Illegal Drug
It may seem obvious, but one defense to drug possession is if the substance in question is not, in fact, an illegal drug. It doesn’t matter how much it looks like it; if it’s not real, the charge against you may have to be dismissed.
Certain drugs that are illegal are perfectly legal with a prescription for the drug. If you have a prescription for the drug, then you are in fact in lawful possession of it.
Certain drug possession crimes require that you possess a minimum amount of the drug. If the prosecution cannot prove that you had that minimum amount on you, you cannot be convicted of that specific charge. You can however still face a lesser possession charge.
You are a Witness to or Victim of Overdose
In an emergent situation, the last thing you want to worry about when you are getting someone help are the ramifications of exposing your use of or witness to illegal drugs. That’s why if you decide to seek health care for a medical emergency in New York, you cannot be charged with drug possession.
The Drugs were located based on an unlawful search or seizure
The Fourth Amendment to the U.S. Constitution prohibits illegal searches and seizures. Although the police can seize drugs if they are in plain view, law enforcement must still follow all lawful procedures. If not, the seizure of any drugs may be ruled inadmissible.
If convicted of a drug crime, the maximum sentence is up to life in prison for criminal possession of a controlled substance in the first degree. Other penalties include:
- Violation (unlawful possession of marijuana)
- Class B misdemeanor
- Class A misdemeanor
- Class E Felony
- Class D Felony
- Class C Felony
- Class B Felony
- Class A-II Felony
- Class A-I Felony
Luckily, New York has an alternative sentencing program to standard jail time. The program, Drug Treatment Court, may be made available for an individual who has a problem with substance abuse, and who has been arrested for drug possession under class B, C, D, or E. If an individual completes the program, this can have a substantial impact on the charges against them. The judge may reduce your criminal charges or even dismiss them.
Contact the Law Offices of Barket Epstein
If you or a loved one have been charged with drug possession, it’s important to quickly take the necessary step of contacting a criminal defense attorney who has the proper experience of defending those accused. At Barket Epstein, we have the necessary years of experience to defend clients who are accused of drug possession. Don’t wait. Call us today!