NYC Legal Guide to Drug Possession and Distribution Charges

NYC Legal Guide to Drug Possession and Distribution Charges

Over the years, drugs in New York City have been glorified, vilified, and partially legalized. New York’s drug laws and the city’s policing policies are constantly a source of controversy, and attitudes toward drug use continue to change at the local and national level. This leaves many people confused about the current status of drug laws – a particularly precarious situation when you’re faced with a charge.

The outcome of your case will depend on the way you handle yourself from your first interaction the police, to picking a lawyer, and through the end of your criminal trial. Having the right legal counsel is important, but it will also help to have a firm understanding of the most common drug charges and penalties in New York, and of the common mistakes too many faced with these charges make.

Common Mistakes Clients Make When Facing Drug Charges

1. Making unnecessary admissions to the police.
The first and potentially most damaging mistake people make when faced with drug charges is making unnecessary and incriminating admissions to the police. While it’s always best to be cooperative and respectful, an arrested person is not obligated to say anything at all to the police, and doing so without a lawyer, especially when a drug charge is involved, can be disastrous.

People generally respond in one of two ways to demonstrations of authority: they aggressively reject it, or they accommodate it. While it’s never in your best interests to be aggressive to an officer, neither is it in your best interests to be unguardedly accommodating. Out of a desire to make your situation proceed more smoothly or to avoid making it worse, you might make vague and problematic statements, give away excessive detail, or even admit to something that isn’t true – all the more likely when you’re in an agitated emotional state. An officer might even encourage you to volunteer information by telling you that it will make things “easier” for you. The officer may be trying to trick you, or it might be an innocent request. Think of statements like that, though, as unsolicited legal advice that an officer is totally unqualified to give out.
When you encounter the police, be courteous and calm. Do not, however, volunteer any more information than is necessary. Call a criminal defense attorney with a proven record of handling drug cases at your earliest opportunity.

2. Assuming you can “plea bargain” and walk away within minimal consequences after a first-time arrest.
Some people unfamiliar with the courts might place too much faith in the “plea bargain.” Widely misunderstood, the plea-bargain is not simply a chance to ask the judge to “cut you a deal.” Not everyone is entitled to a plea bargain. Depending on the charge, the prosecutor, the judge, the circumstances of your case, and criminal and personal background, your lawyer may be able to arrange for you to plead guilty to reduced charges.

3. Failing to exercise proper caution and common sense on social media.
The Internet is not anonymous, and it is not private. It never has been and it probably never will be. You must be careful about what you post online. If you’ve been charged with possession of marijuana, and your Facebook or Instagram pages are loaded with pictures of pot and paraphernalia, 4/20 references, and smoke-ring selfies, the prosecution will find these, and will present them in court as evidence if they deem it necessary.

Perhaps surprisingly, many people also incriminate themselves on forums designed for those seeking legal advice to ask questions of attorneys. These can be a useful resource, but some people share too much, and the sites are not anonymous or secure. They are plastered with disclaimers to that effect. You must not share personal information on these sites. While they are largely benign, if you’re seeking legal advice, you’d be better off calling the office of a trusted criminal attorney in NYC.

Most Frequent Drug Charges in New York City

While there are many types of illegal drugs, and new varieties rise in popularity on a semi-regular basis, the three drugs that most commonly lead to arrests and trials in New York City are marijuana, cocaine, and heroin.

Marijuana

Possession

  • 25 g or less (first offense) is punishable by a fine of $100
  • 25 g or less (second offense) is punishable by a fine of $200
  • 25 g or less (third offense) is punishable by a fine of $250 and 15 days in jail
  • More than 25 g – 2 oz is a misdemeanor and is punishable by up to 3 months in jail and a fine of $500
  • More than 2 – 8 oz is a Class A misdemeanor and is punishable by up to 1 year in jail and a fine of up to $1,000
  • More than 8 oz – 1 lb is a Class E Felony and is punishable by up to 4 years in prison and a fine of up to $5,000
  • More than 1 – 10 lbs is a Class D Felony and is punishable by up to 7 years in prison and a fine of up to $5,000
  • More than 10 lbs is a Class C Felony and is punishable by up to 15 years in prison and a fine of up to $ 15,000
  • In public view is a Class B misdemeanor, punishable by up to 90 days in jail and/or a fine of up to $250

Sale

  • 2 g or less without profit or 1 marijuana cigarette is a misdemeanor (B) punishable by up to 3 months in jail and a fine of up to $500
  • 25 g or less is a misdemeanor (A) punishable by up to 1 year in jail and a fine of up to and a fine of up to $1,000
  • More than 25 g – 4 oz Felony (E) punishable by up to 4 years and a fine of up to $5,000
  • More than 4 oz – 1 lb Felony (D) punishable by up to 7 years and a fine of up to $5,000
  • More than 1 lb Felony (C) punishable by up to 15 years and a fine of up to $15,000
  • Using a child to assist Felony (E) punishable by up to 4 years and a fine of up to $5,000
  • To a minor Felony (D) punishable by up to 7 years and a fine of up to $5,000
  • Trafficking* Felony (A-I) punishable by 15- 25 years in prison and a fine of up to $100,000

*In New York, one is a “trafficker” of marijuana if one acts as the director of an organization which sells $75,000 worth of marijuana over the course of a year or less; if one collects $75,000 or more from sales of marijuana over the course of six months or less; or if one possesses with intent to sell $75,000 or more of marijuana over the course of six months or less.

The majority of marijuana arrests are for public possession or consumption of small amounts of marijuana – and the defendants are sometimes people who thought they weren’t breaking any law. Marijuana is not legalized or decriminalized in the State of New York. The Legislature did legalize marijuana – but only for people who have documentation of a medical prescription. (And even people with proper documentation sometimes find themselves the victims of police harassment.) This is strictly for personal use (not re-sale) and within certain limits. In his State of the State addresses, Gov. Andrew Cuomo has advocated for eliminating penalties for possession of marijuana in small amounts. Whether this will pass depends on the Legislature; and as of February 2017, Cuomo has said he remains “unconvinced” as to the wisdom of legalizing recreational marijuana entirely.

For now, you should understand the penalties above. In addition to the fines and jail time listed, you should be aware that the consequences are heightened in certain circumstances: for example, if you are charged with possession and intent to sell within 1,000 feet of a school zone. You can also be charged with a DWI for driving while under the influence of marijuana. Authorities have different ways of measuring “intoxication” in these cases; ambiguities and unresolved controversies in this area of the law may provide opportunities for a strong defense that discredits the prosecution’s attempts to prove intoxication.

Though they may seem absolute, it is possible to reduce penalties or secure a plea bargain. In the case of a first offense for simple possession, you may be entitled an Adjournment in Contemplation of Dismissal (ACD). In this scenario, your case would essentially be “on hold” for a certain period (called a “diversionary period”), and, barring any further run-ins with the authorities, the charges could be dropped after that period.

Lastly, you should know that felony charges go to the Supreme Court. Because these are rare, you’ll want to hire an attorney who has already handled felony marijuana possession or distribution charges.

Cocaine and Heroin

New York State did away in 2009 with the mandatory minimum sentences of the Nelson Drug Laws, that passed in 1973 and forever changed the American penal system. Even without mandatory minimum sentences, New York has some of the harshest laws controlling the possession and distribution of narcotics of any state in the Union. When charged with possession or distribution of a controlled substance, you will also face federal fines.

Possession or sale of cocaine and heroin are the most common narcotics charges in New York City.

Cocaine (Crack or Powder) Possession – NY

  • Less than 500mg is a Class A misdemeanor punishable by up to 1 year in jail
  • 500mg or more is a Class D Felony punishable by 1-2.5 years (up to 4 for a subsequent offense, and up to 4.5 for a previous violent offender) in prison
  • 1/8 oz or more  is a Class C felony punishable by 1-5.5 years in prison (8/9)
  • ½ oz or more is a Class B Felony punishable by 1-9 years in prison (12/15)
  • 4 oz or more is a Class A-II Felony punishable by 3-10 years in prison (14/17)
  • 8 oz or more is a Class A-II Felony punishable by 8-20 years in prison (24/30)

Cocaine (Crack or Powder) Sale – NY

  • Less than ½ oz is a Class B Felony punishable by 1-9 years in prison (12/15)
  • ½ oz or more is a Class A-II Felony punishable by 3-10 years in prison (14/17)
  • 2 oz or more is a Class A-I Felony punishable by 8-20 years in prison (15/30)

Cocaine Possession (Crack or Powder) – Federal

  • First conviction Max. 1 year in jail; min. $1,000
  • Second Conviction Min. 15 days – max. 2 years in jail; min. $2,500
  • Third Conviction Min. 90 days – max. 3 years; min. $5,000

Note that these penalties apply only to possession. Most prosecutors will impute “intent to distribute” for possession of even a small amount of cocaine.

Powder Cocaine Sale – Federal

  • Less than 500g Max. 20 years; max. $1 million
  • 500g or more Min 5 – max. 40 years; max. $2 million
  • 5kg or more Min 10 years – max. Life; max. $4 million

Note that these are penalties for first convictions without accounting for other circumstances.

Crack Cocaine Sale – Federal

  • Less than 28g Max. 20 years; max. $1 million
  • 28g or more Min 5 – max. 40 years; max. $2 million
  • 280g or more Min 10 years – max. Life; max. $4 million
  • Note that these are penalties for first convictions without accounting for other circumstances.

Heroin Possession – NY

  • Less than 1/8 oz Misdemeanor (A) 1 year
  • 1/8 oz or more Felony (C) 1-5.5 years (up to 8 for a subsequent offense, and up to 9 for a previous violent offender)
  • ½ oz or more Felony (B) 1-9 years (12/15)
  • 4 oz or more Felony (A-II) 3-10 years (14/17)
  • 8 oz or more Felony (A-II) 8-20 years (24/30)

Heroin Sale – NY

  • Less than ½ oz is a Class B Felony punishable by 1-9 years in prison (12/15)
  • ½ oz or more is a Class A-II Felony punishable by 3-10 years in prison (14/17)
  • 2 oz or more is a Class A-I Felony punishable by 8-20 years in prison (15/30)

Heroin Possession – Federal

  • First conviction: Max. 1 year in jail; min. $1,000
  • Second Conviction: Min. 15 days – max. 2 years in jail; min. $2,500
  • Third Conviction: Min. 90 days – max. 3 years; min. $5,000

Note that these penalties apply only to possession. Most prosecutors will impute “intent to distribute” for possession of even a small amount of cocaine.

Heroin Sale – Federal

  • Less than 100g is punishable by up to 20 years in prison and a max. fine of $1 million
  • 100g – 1 kg is punishable by min 5 – max. 40 years in prison and a max. fine of $2 million
  • 1kg or more is punishable by a min 10 years – max. Life imprisonment and a max. fine of $4 million

Note that these are penalties for first convictions without accounting for other circumstances.

Call On An Experienced Attorney In NYC

If you’re facing a charge of drug possession or distribution in New York City, you need an experienced criminal attorney. After six years as a prosecutor and Assistant District Attorney in the Bronx, Carl Spector became a defense attorney, and has spent the last 24 years providing expert legal counsel for DUI, drug-related, and other criminal charges. Call our Manhattan office today to set up a free and confidential consultation.

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