Criminal Possession of a Controlled Substance Criminal Possession of a Controlled Substance! All crimes in this requires that the defendant knowingly and unlawfully possess a Criminal Possession of a Controlled Substance Terms! The terms that need to be defined are:! Controlled substance! Possess! Knowingly! Unlawfully 1
Possess! Possess means: 1. physical possession; or 2. exercise dominion or control over tangible property; or 3. presumptive automobile evidence:! presence of a in an automobile, other than a public bus, is presumptive evidence of knowing possession by each and every person in the car at the time such was found (does not apply if it was found concealed on a person) Knowingly! Knowingly with respect to conduct or to a circumstance described by a statute defining an offense, requires that a person be aware that his or her conduct is of such nature or that such circumstance exists (Penal Law 15.05 [2]). Unlawfully! Unlawfully means a violation of Public Health Law Article 3305 (Penal Law 220.00 (2):! a person unlawfully possesses when that person has no legal right to possess.! The basic rule is that a person has no legal right to possess or sell a. 2
Degrees & Elevators Degrees and Elevators! There are six degrees of criminal possession of a controlled substance.! The basic offense is criminal possession of a controlled substance in the seventh degree (Penal Law 220.03), a class A misdemeanor.! In order to elevate that crime, the defendant will have to possess a certain type of and/or a minimum quantity of a and the s/he possess it with the intent to sell it. Individual Offenses 3
Seventh Degree The Basic: 7th Degree in the seventh degree (Penal Law 220.03 ) substance in the seventh degree when he or she knowingly and unlawfully possesses a. in the seventh degree is a class A misdemeanor. 7th Degree Elements 1. the defendant possessed a 4
Fifth Degree 5th Degree in the fifth degree (Penal Law 220.06) substance in the fifth degree when he knowingly and unlawfully possesses:! 1. a with intent to sell it; or! 5. cocaine and said cocaine weighs five hundred milligrams or more.! 6. ketamine and said ketamine weighs more than one thousand milligrams. in the fifth degree is a class D felony. 5th degree ( 220.06 [1]) in the fifth degree (Penal Law 220.06 [1]) substance in the fifth degree when he knowingly and unlawfully possesses a with intent to sell it. 5
5th degree Elements (1) 1. the defendant possessed a 3. the defendant possessed the controlled substance with the intent to sell it. 5th Degree ( 220.06 [5]) in the fifth degree (Penal Law 220.06 [5]) substance in the fifth degree when he knowingly and unlawfully possesses cocaine and said cocaine weighs five hundred milligrams or more. 5th degree Elements (5) 1. the defendant possessed a (i.e. 500mg or more of cocaine) 6
5th Degree ( 220.06 [6]) in the fifth degree (Penal Law 220.06 [6]) substance in the fifth degree when he knowingly and unlawfully possesses ketamine and said ketamine weighs more than one thousand milligrams. 5th degree Elements (5) 1. the defendant possessed a (i.e. 1000mg or more of ketamine) Fourth Degree 7
4th Degree ( 220.09) in the fourth degree (Penal Law 220.09) substance in the fourth degree when he knowingly and unlawfully possesses:! 1. one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more; or! 4. a stimulant and said stimulant weighs one gram or more; or 4th Degree ( 220.09) in the fourth degree (Penal Law 220.09) substance in the fourth degree when he knowingly and unlawfully possesses:! 6. a hallucinogen and said hallucinogen weighs twenty-five milligrams or more; or! 9. a depressant and such depressant weighs two pounds or more. in the fourth degree is a class C felony. 4th Degree ( 220.09 [1] in the fourth degree (Penal Law 220.09 [1]) substance in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more 8
4th Degree Elements (1) 1. the defendant possessed a (i.e. 1/8th of an ounce or more of one or more preparations, compounds, mixtures or substances containing a narcotic) 4th Degree ( 220.09 [4]) in the fourth degree (Penal Law 220.09 [4]) substance in the fourth degree when he knowingly and unlawfully possesses a stimulant and said stimulant weighs one gram or more. 4th Degree Elements (4) 1. the defendant possessed a (i.e. 1 gram or more of a stimulant) 9
4th Degree ( 220.09 [6]) in the fourth degree (Penal Law 220.09 [6]) substance in the fourth degree when he knowingly and unlawfully possesses a hallucinogen and said hallucinogen weighs twenty-five milligrams or more. 4th Degree Elements (6) 1. the defendant possessed a (i.e. 25mg or more of a hallucinogen) 4th Degree ( 220.09 [9]) in the fourth degree (Penal Law 220.09 [9]) substance in the fourth degree when he knowingly and unlawfully possesses a depressant and such depressant weighs two pounds or more. 10
4th Degree Elements (9) 1. the defendant possessed a (i.e. 2lb or more of a depressant) Third Degree 3rd Degree ( 220.16) in the third degree (Penal Law 220.16) substance in the third degree when he knowingly and unlawfully possesses:! 1. a narcotic drug with intent to sell it; or! 3. a stimulant with intent to sell it and said stimulant weighs one gram or more; or! 5. a hallucinogen with intent to sell it and said hallucinogen weighs twenty-five milligrams or more; or 11
3rd Degree ( 220.16)! Criminal possession of a in the third degree (Penal Law 220.16) substance in the third degree when he knowingly and unlawfully possesses:! 8. a stimulant and said stimulant weighs five grams or more; or! 10. a hallucinogen and said hallucinogen weighs one hundred twenty-five milligrams or more in the third degree is a class B felony. 3rd Degree ( 220.16 [1]) in the third degree (Penal Law 220.16 [1]) substance in the third degree when he knowingly and unlawfully possesses a narcotic drug with intent to sell it. 3rd Degree Elements (1) 1. the defendant possessed a (narcotic drug) 3. the defendant possessed it with the intent to sell it. 12
3rd Degree ( 220.16 [3]) in the third degree (Penal Law 220.16 [3]) substance in the third degree when he knowingly and unlawfully possesses a stimulant with intent to sell it and said stimulant weighs one gram or more. 3rd Degree Elements (3) 1. the defendant possessed a (i.e. 1g or more of a stimulant) 3. the defendant possessed it with the intent to sell it. 3rd Degree ( 220.16 [5]) in the third degree (Penal Law 220.16 [5]) substance in the third degree when he knowingly and unlawfully possesses a hallucinogen with intent to sell it and said hallucinogen weighs twenty-five milligrams or more 13
3rd Degree Elements (5) 1. the defendant possessed a (i.e. 25mg or more of a hallucinogen) 3. the defendant possessed it with the intent to sell it. 3rd Degree ( 220.16 [8]) in the third degree (Penal Law 220.16 [8]) substance in the third degree when he knowingly and unlawfully possesses a stimulant and said stimulant weighs five grams or more 3rd Degree Elements (8) 1. the defendant possessed a (i.e. 5g or more of a stimulant) 14
3rd Degree ( 220.16 [10]) in the third degree (Penal Law 220.16 [10]) substance in the third degree when he knowingly and unlawfully possesses a hallucinogen and said hallucinogen weighs one hundred twenty-five milligrams or more 3rd Degree Elements (10) 1. the defendant possessed a (i.e. 125mg or more of a hallucinogen) Second Degree 15
2nd Degree ( 220.18) in the second degree (Penal Law 220.18) substance in the second degree when he or she knowingly and unlawfully possesses:! 1. one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more; or! 3. a stimulant and said stimulant weighs ten grams or more; or 2nd Degree ( 220.18)! Criminal possession of a controlled substance in the second degree (Penal Law 220.18) substance in the second degree when he or she knowingly and unlawfully possesses:! 5. a hallucinogen and said hallucinogen weighs six hundred twenty-five milligrams or more. in the second degree is a class A-II felony 2nd Degree ( 220.18 [1]) in the second degree (Penal Law 220.18 [1]) substance in the second degree when he or she knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more. 16
2nd Degree Elements (1) 1. the defendant possessed a (i.e. 4 ounces or more one or more preparations, compounds, mixtures or substances containing a narcotic drug) 2nd Degree ( 220.18 [3]) in the second degree (Penal Law 220.18 [3]) substance in the second degree when he or she knowingly and unlawfully possesses a stimulant and said stimulant weighs ten grams or more. 2nd Degree Elements (3) 1. the defendant possessed a (i.e. 10 grams or more one or more of a stimulant) 17
2nd Degree ( 220.18 [5]) in the second degree (Penal Law 220.18 [5]) substance in the second degree when he or she knowingly and unlawfully possesses a hallucinogen and said hallucinogen weighs six hundred twenty-five milligrams or more. 2nd Degree Elements (5) 1. the defendant possessed a (i.e. 625mg or more one or more of a hallucinogen) First Degree 18
First Degree ( 220.21) in the first degree (Penal Law 220.21) 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 and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more. in the first degree is a class A-I felony. First Degree ( 220.21 [1]) in the first degree (Penal Law 220.21 [1]) substance in the first degree when he or she knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more. 1. the defendant possessed a (i.e. 8 ounces or more of one or more preparations, compounds, mixtures or substances containing a narcotic) 19
Elevators Where The Elevating Factor Is Possession With Intent To Sell in the seventh degree (Penal Law 220.03) in the fifth degree ( 220.06 [1])! (A NARCOTIC DRUG): Criminal possession of a controlled substance in the third degree ( 220.16 [1])! (1 GRAM OF A STIMULANT): Criminal possession of a controlled substance in the third degree ( 220.16 [3])! (HALLUCINOGEN 25 MG): Criminal possession of a controlled substance in the third degree ( 220.16 [5]) Where The Elevating Factor Is Possession Of Cocaine in the seventh degree (Penal Law 220.03) in the fifth degree (Penal Law 220.06 [5]) 20
Where The Elevating Factor Is Possession Of Ketamine in the seventh degree (Penal Law 220.03) in the fifth degree (Penal Law 220.06 [6]) Where The Elevating Factor Is Possession Of Preparations, Compounds, Mixtures Or Substances Containing A Narcotic Drug in the seventh degree (Penal Law 220.03)! (1/8TH OF AN OUNCE): Criminal possession of a controlled substance in the fourth degree (Penal Law 220.09 [1])! (4 OUNCES): Criminal possession of a in the second degree (Penal Law 220.18 [1])! (8 OUNCES): Criminal possession of a in the first degree (Penal Law 220.21 [1]) Where The Elevating Factor Is Possession Of Stimulant in the seventh degree (Penal Law 220.03)! (1 GRAM): Criminal possession of a in the fourth degree (Penal Law 220.09 [4])! (1 GRAM AND WITH INTENT TO SELL): Criminal possession of a in the third degree (Penal Law 220.16 [3])! (5 GRAM): Criminal possession of a in the third degree (Penal Law 220.16 [5])! (10 GRAMS): Criminal possession of a in the second degree (Penal Law 220.18 [3]) 21
Where The Elevating Factor Is Possession Of Hallucinogen in the seventh degree (Penal Law 220.03)! (25 MG): Criminal possession of a in the fourth degree (Penal Law 220.09 [6])! (25 MG WITH INTENT TO SELL): Criminal possession of a controlled substance in the third degree (Penal Law 220.16 [5])! (125 MG): Criminal possession of a in the third degree (Penal Law 220.16 [10])! (625 MG): Criminal possession of a in the second degree (Penal Law 220.18 [5]) Where The Elevating Factor Is Possession Of Depressant in the seventh degree (Penal Law 220.03) in the fourth degree (Penal Law 220.09 [9]) Any Questions? 22