Practice Area

Drug Charge Crimes

Possession of Controlled Substances and Marijuana

Controlled Substances: As former NYC Prosecutors and Criminal Defense Attorneys with more than three decades of experience we are dedicated to protecting our clients’ rights. If you have been charged with a drug crime, from possession of marijuana to narcotics trafficking, we will fight for you. Contact us now for a free consultation.

Our defense philosophy is simple: Do the hard investigation and prepare diligently for trial. Only by doing the hard work can we negotiate on your behalf from strength or mount an effective and winning defense at trial. We Conduct a Complete and Thorough Investigation in Every Drug Case. We interview every witness. We file all appropriate motions to dismiss. We know the Prosecutors and we know how to deal with them.

We handle all crimes involving marijuana, crack, cocaine, methamphetamines, heroin, “designer drugs” such as Ecstasy, prescription drugs, and many others, including drug offenses such as:

  • Drug possession or Sale

  • Possession with intent to deliver, sales, or drug distribution

  • Possession of Drug Paraphernalia

  • Drug trafficking or importation

  • Drug cultivation or manufacturing, including operation of a meth lab

  • Drug conspiracy

  • RICO Criminal Possession of a Controlled Substance.

There are six degrees of Criminal Possession of a Controlled Substance. The degree is determined by elements such as the amount and the nature of the controlled substance, whether the possession was with an intent to sell, and whether there is a particular earlier conviction. These Possession counts range from a Class A Misdemeanor to a Class A Felony.

Criminal Possession of a Controlled Substance in the Seventh Degree: ” A Misdemeanor”:

Knowingly and unlawfully possessing any amount of any controlled substance.

Criminal Possession of a Controlled Substance in the Fifth Degree: ” D Felony”:

Knowingly and unlawfully possessing:

Any amount of any controlled substance with intent to sell,

  • .5 ounces or more of a narcotic preparation,

  • 50 milligrams or more of PCP,

  • .25 ounces or more of concentrated cannabis,

  • 500 milligrams or more of cocaine,

  • More than 1,000 milligrams of ketamine, or any amount with a previous ketamine conviction,

  • 28 grams or more of GHB.

Criminal Possession of a Controlled Substance in the Fourth Degree: ” C Felony”:

Knowingly and unlawfully possessing:

  • .125 ounces or more of a narcotic drug,

  • 2 ounces or more of a narcotic preparation,

  • .5 ounces or more of methamphetamine,

  • 1 gram or more of a stimulant,

  • 1 milligram or more of LSD,

  • 25 milligrams or more of a hallucinogen,

  • 1 gram or more of a hallucinogenic substance,

  • 10 ounces or more of a dangerous depressant,

  • 2 pounds or more of a depressant,

  • 1 ounce or more of concentrated cannabis,

  • 250 milligrams or more of PCP, or 50 milligrams or more with intent to sell and with a previous drug conviction,

  • 360 milligrams or more of methadone,

  • 4,000 milligrams or more of ketamine,

  • 200 grams or more of GHB.

Criminal Possession of a Controlled Substance in the Third Degree: ” B Felony”:

Knowingly and unlawfully possessing:

  • .5 ounces or more of a narcotic drug, or any amount with intent to sell,

  • .125 ounces or more of methamphetamine with intent to sell,

  • 5 grams or more of a stimulant, or 1 gram or more with intent to sell, or any amount with intent to sell and with a previous drug conviction,

  • 5 milligrams or more of LSD, or 1 milligram or more with intent to sell, or any amount with intent to sell and with a previous drug conviction,

  • 125 milligrams or more of a a hallucinogen, or 25 milligrams or more with intent to sell, or any amount with intent to sell and with a previous drug conviction,

  • 5 grams or more of a hallucinogenic substance, or 1 gram or more with intent to sell, or any amount with intent to sell and with a previous drug conviction,

  • 1,250 milligrams or more of PCP, or 50 milligrams or more with intent to sell and with a previous drug conviction.

Criminal Possession of a Controlled Substance in the Second Degree: “A-II Felony”:

Knowingly and unlawfully possessing:

  • 4 ounces or more of a narcotic drug,

  • 2 ounces or more of methamphetamine,

  • 10 grams or more of a stimulant,

  • 25 milligrams or more of LSD,

  • 625 milligrams or more of a hallucinogen,

  • 25 grams or more of a hallucinogenic substance,

  • 2,880 milligrams or more of methadone.

Criminal Possession of a Controlled Substance in the First Degree: “A-I Felony”:

Knowingly and unlawfully possessing:

8 ounces or more of a narcotic drug,

5,760 milligrams or more of methadone.

Constructive Possession

In New York, you may find yourself charged with drug possession, even if you are not in actual physical possession of any drugs. The Prosecutor may charge you with Constructive Possession if you are found to be in the dominion or control of drugs near to you, or in area over which you exercise control, such as your apartment or car Moreover if you are with other people in a car or an apartment, and the police find drugs, under certain circumstances, you and the people with you, could all be presumptively charged with the possession of these drugs. The attorneys at GUTTMANN & KELLNER , P.C. have the skills to test whether the police officer’s behavior with respect to the seizure of the drug evidence was proper. If at a hearing the Court finds that the recovery of drug evidence was the product of an illegal search, then the drug evidence will be suppressed and the case often dismissed. If you have been charged with drug possession or sale in Suffolk County, Nassau County or the New York City area, contact the attorneys at GUTTMANN & KELLNER, P.C. at 631 360-2175 Free Consultation | All Major Credit Cards Accepted |

Possession of Marihuana

S 221.05 Unlawful possession of marihuana.

A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation.

S 221.10 Criminal possession of marihuana in the fifth degree.

A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses:

  • marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or

  • one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams. Criminal possession of marihuana in the fifth degree is a class B misdemeanor.

S 221.15 Criminal possession of marihuana in the fourth degree.

  • A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces. Criminal possession of marihuana in the fourth degree is a class A misdemeanor.

S 221.20 Criminal possession of marihuana in the third degree.

  • A person is guilty of criminal possession of marihuana in the third degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than eight ounces. Criminal possession of marihuana in the third degree is a class E felony.

S 221.25 Criminal possession of marihuana in the second degree.

  • A person is guilty of criminal possession of marihuana in the second degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces. Criminal possession of marihuana in the second degree is a class D felony.

S 221.30 Criminal possession of marihuana in the first degree.

  • A person is guilty of criminal possession of marihuana in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than ten pounds. Criminal possession of marihuana in the first degree is a class C felony.

Drug Sales

S 220.31 Criminal sale of a controlled substance in the fifth degree.

  • A person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance. Criminal sale of a controlled substance in the fifth degree is a class D felony.

S 220.34 Criminal sale of a controlled substance in the fourth degree.

A person is guilty of criminal sale of a controlled substance in the fourth degree when he knowingly and unlawfully sells:

  • a narcotic preparation

  • a dangerous depressant or a depressant and the dangerous depressant weighs ten ounces or more, or the depressant weighs two pounds or more

  • concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of the public health law

  • phencyclidine and the phencyclidine weighs fifty milligrams or more

  • methadone

  • any amount of phencyclidine and has previously been convicted of an offense defined in this article or the attempt or conspiracy to commit any such offense

  • ketamine and said ketamine weighs four thousand milligrams or more.

  • a controlled substance in violation of section 220.31 of this article, when such sale takes place upon school grounds or on a school bus

  • a controlled substance in violation of section 220.31 of this article, when such sale takes place upon the grounds of a child day care or educational facility under circumstances evincing knowledge by the defendant that such sale is taking place upon such grounds. As used in this subdivision, the phrase “the grounds of a child day care or educational facility” shall have the same meaning as provided for in subdivision five of section 220.44 of this article. For the purposes of this subdivision, a rebuttable presumption shall be established that a person has knowledge that they are within the grounds of a child day care or educational facility when notice is conspicuously posted of the presence or proximity of such facility; or 9. one or more preparations, compounds, mixtures or substances containing gamma hydroxybutyric acid, as defined in paragraph four of subdivision (e) of schedule I of section thirty-three hundred six of the public health law, and said preparations, compounds, mixtures or substances are of an aggregate weight of twenty-eight grams or more. Criminal sale of a controlled substance in the fourth degree is a class C felony.

S 220.39 Criminal sale of a controlled substance in the third degree.

A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells:

  • a narcotic drug

  • a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and has previously been convicted of an offense defined in article two hundred twenty or the attempt or conspiracy to commit any such offense

  • a stimulant and the stimulant weighs one gram or more

  • lysergic acid diethylamide and the lysergic acid diethylamide weighs one milligram or more

  • a hallucinogen and the hallucinogen weighs twenty-five milligrams or more

  • a hallucinogenic substance and the hallucinogenic substance weighs one gram or more

  • one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and the preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more

  • phencyclidine and the phencyclidine weighs two hundred fifty milligrams or more

  • a narcotic preparation to a person less than twenty-one years old

Criminal sale of a controlled substance in the third degree is a class B felony.

S 220.41 Criminal sale of a controlled substance in the second degree.

A person is guilty of criminal sale of a controlled substance in the second degree when he knowingly and unlawfully sells:

  • one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more; or

  • one or more preparations, compounds, mixtures or substances containing methamphetamine, its salts, isomers or salts of isomers and the preparations, compounds, mixtures or substances are of an aggregate weight of one-half ounce or more

  • a stimulant and the stimulant weighs five grams or more

  • lysergic acid diethylamide and the lysergic acid diethylamide weighs five milligrams or more

  • a hallucinogen and the hallucinogen weighs one hundred twenty-five milligrams or more

  • a hallucinogenic substance and the hallucinogenic substance weighs five grams or more

  • methadone and the methadone weighs three hundred sixty milligrams or more.

Criminal sale of a controlled substance in the second degree is a class A-II felony.

S 220.43 Criminal sale of a controlled substance in the first degree.

A person is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells:

  • one or more preparations, compounds, mixtures or substances containing a narcotic drug and the preparations, compounds, mixtures or substances are of an aggregate weight of two ounces or more

  • methadone and the methadone weighs two thousand eight hundred eighty milligrams or more.

Criminal sale of a controlled substance in the first degree is a class A-I felony.

S 220.44 Criminal sale of a controlled substance in or near school grounds.

A person is guilty of criminal sale of a controlled substance in or near school grounds when he knowingly and unlawfully sells:

a controlled substance in violation of any one of subdivisions one through six-a of section 220.34 of this article, when such sale takes place upon school grounds or on a school bus

a controlled substance in violation of any one of subdivisions one through eight of section 220.39 of this article, when such sale takes place upon school grounds or on a school bus

a controlled substance in violation of any one of subdivisions one through six of section 220.34 of this article, when such sale takes place upon the grounds of a child day care or educational facility under circumstances evincing knowledge by the defendant that such sale is

taking place upon such grounds

a controlled substance in violation of any one of subdivisions one through eight of section 220.39 of this article, when such sale takes place upon the grounds of a child day care or educational facility under circumstances evincing knowledge by the defendant that such sale is

taking place upon such grounds.

For purposes of subdivisions three and four of this section, “the grounds of a child day care or educational facility” means (a) in or on or within any building, structure, athletic playing field, a playground or land contained within the real property boundary line of a public or private child day care center as such term is defined in paragraph (c)of subdivision one of section three hundred ninety of the social services law, or nursery, pre-kindergarten or kindergarten, or (b) any

area accessible to the public located within one thousand feet of the real property boundary line comprising any such facility or any parked automobile or other parked vehicle located within one thousand feet of the real property boundary line comprising any such facility. For the

purposes of this section an “area accessible to the public” shall mean sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants.

For the purposes of this section, a rebuttable presumption shall be established that a person has knowledge that they are within the grounds of a child day care or educational facility when notice is conspicuously posted of the presence or proximity of such facility.

Criminal sale of a controlled substance in or near school grounds is a class B felony.

S 221.35 Criminal sale of marihuana in the fifth degree.

A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of two grams or less; or one cigarette containing marihuana. Criminal sale of marihuana in the fifth degree is a class B misdemeanor.

S 221.40 Criminal sale of marihuana in the fourth degree.

A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided in section 221.35 of this article.

Criminal sale of marihuana in the fourth degree is a class A misdemeanor.

S 221.45 Criminal sale of marihuana in the third degree.

A person is guilty of criminal sale of marihuana in the third degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams.

Criminal sale of marihuana in the third degree is a class E felony.

S 221.50 Criminal sale of marihuana in the second degree.

A person is guilty of criminal sale of marihuana in the second degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than four ounces, or knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana to a person less than eighteen years of age.

Criminal sale of marihuana in the second degree is a class D felony.

S 221.55 Criminal sale of marihuana in the first degree.

A person is guilty of criminal sale of marihuana in the first degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces.

Criminal sale of marihuana in the first degree is a class C felony.

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