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What Constitutes a Possession of Illegal Drugs Charge?


Possession or distribution of illegal drugs is considered a crime under federal and state laws which can result in criminal prosecution. The manufacturing of illegal drugs is considered a felony. The consequences of a conviction can include hefty fines and prison time. In addition, those who help to produce any kind of illegal drug may also be charged with the crime and are typically subject to consequences that are much more severe than possession of a drug for personal use.

Under the New York Penal Law, a person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance; provided, however, that it shall not be a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to section thirty-three hundred eighty-one of the public health law; nor shall it be a violation of this section when a person’s unlawful possession of a controlled substance is discovered as a result of seeking immediate health care as defined in paragraph (b) of subdivision three of section 220.78 of the penal law, for either another person or him or herself because such person is experiencing a drug or alcohol overdose or other life threatening medical emergency as defined in paragraph (a) of subdivision three of section 220.78 of the penal law. Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

Conviction of a Class A Misdemeanor for criminal possession of a controlled substance could result in up to 1 year in jail. The criminal defense attorneys at E. Stewart Jones are ready and able to defend your misdemeanor drug cases. It should be noted that if the possession charge is accompanied by another misdemeanor or felony charge, or preceded by previous charges or convictions, time in jail or prison can increase significantly. Our attorneys will work hard to present a strong defense to minimize time in jail, fines and or penalties.

Generally, a controlled substance is an illegal drug that can have a detrimental effect on a person’s health and welfare. As a result, state and federal governments have seen fit to regulate these substances. A person caught possessing a controlled substance can be fined and held in prison by local, state, and federal law enforcement.

However, not all controlled substances are illegal in all circumstances many are prescribed to the general public and sold through pharmacies and dispensaries for legitimate medical treatment. To determine if a particular drug is legal, you should refer to the federal controlled substance schedules. Read on to learn more about the different controlled substances schedules and how state and federal governments enforce controlled substance laws.


There are many tactics used by law enforcement to justify a drug possession charge, the process from the moment an arrest or “DAT” (Desk Appearance Ticket) is issued will be critical to the outcome of your case. While law enforcement sends the substance recovered from you to the lab to determine what it is, and whether the amount you had on your person is enough to charge you with a felony drug charge, you should be working actively with your criminal defense attorney before the first appearance.

After the Court of Appeal’s recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the “policy” that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant’s constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

The Controlled Substances Act is the federal drug policy that regulates the manufacture and distribution of controlled substances such as hallucinogens, narcotics, depressants, and stimulants. The Act categorizes drugs into five “Schedules” or classifications based on their potential for abuse, status in international treaties, and any medical benefits they may provide. Drugs classified in Schedule 1 are considered the most harmful substances with no medical benefits, and the rest descend from there: Schedule 1: Examples of Schedule 1 drugs include Ecstasy, LSD, and Heroin. Marijuana is also considered a Schedule 1 drug despite several studies done on its medical benefits. Schedule 2: Examples of Schedule 2 drugs include Cocaine and Morphine. Schedule 3: Examples of Schedule 3 drugs include Anabolic steroids, Vicodin, and Marinol, which is used to treat nausea caused by chemotherapy. Schedule 4: Examples of Schedule 4 drugs include Ambien, Xanax, and Valium. Schedule 5: Examples of Schedule 5 drugs include Lyrica and cough suppressants.



In People v. Pernell Nunn, , decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether “the exercise of the court’s discretion to deem a misdemeanor complaint charging a drug related offense to be an information in the absence of a field test or laboratory analysis, violate the defendant’s constitutional right to due process? The answer and the case after the jump. Citing the Matter of Jahron S, 79 NY2d 632 (1992), a case involving the possession of drugs, Judge Wilson observed that “‘opinion as to the content of the vials containing alleged controlled substances is legally insufficient because it does not by itself establish the existence of a controlled substance.’ Id at 636. (Emphasis added.) This was the case even if the officer asserted that the substance recovered was crack cocaine based upon his ‘training and experience.’” In other words, to make the complaint sufficient, a laboratory analysis or field test was needed. However, Judge Wilson also recognized that this requirement was not a rule set in stone and that the Court of Appeals left “open the possibility that a deposition based on personal knowledge and expertness may, in unforeseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or its elements, or the special knowledge of the affiant” even without the accompanying chemical analysis. Id. At 640

Judge Wilson ultimately strayed from Kalin finding that due process trumps the ruling in that case. More specifically, the court feared that failure to provide a laboratory report or field test to confirm the presence of the drug would often lead to the incarceration of people and their unjust deprivation of their liberty and rights for extended periods of time prior to having the opportunity to have a trial on their matter.

The court concluded :“In fact, if Kalin is used to excuse the People from producing a field test or laboratory analysis before conversion of the complaint in all cases, there is a substantial risk of our participation in an ‘unchecked system of detention,’ which would carry ‘the potential to become a means for oppression and abuse.’ As stated in the dissent to Kalin, the Criminal Courts of the State of New York must continue ‘to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant.’ “Thus, in an effort to insure that each defendant receives the procedural due process they are guaranteed under the New York State and Federal Constitutions, this Court will continue to require the People to file a laboratory report or field test before a prima facie case is established in the majority of drug-related cases.”

For further information on drug crimes in New York, please follow the previous link and read the articles on constructive possession and whether the amount of drugs found must be sufficient for use or sale to establish this offense. Call us at Stephen Bilkis and Associates, our New York Criminal Attorney and New York Order of Protection Attorney can help you.

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