New York makes hundreds of controlled substances illegal. Getting caught with any of them can result in jail or prison, depending on the type of drug.
Updated September 21, 2023
All states regulate and control the possession of controlled substances, though each differs in its exact definition of controlled substances and the penalties for possessing them. New York classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled substances but also the compounds used to manufacture them.
This article discusses only the illegal possession of controlled substances (also called drug possession in this article). Illegally making or selling controlled substances carries different penalties.
How New York Classifies Controlled Substances
Like the federal government, New York divides controlled substances into five categories called "schedules." Schedule I lists the most dangerous drugs, which have a high probability of abuse and addiction, and no recognized medical value. Schedules II, III, IV, and V decrease in dangerousness and probability of abuse, and increase in recognized medical uses.
There are hundreds of drugs and their compounds listed in New York's drug schedules. You can find the classification for a particular drug by looking at the New York Code: N.Y. Pub. Health Law § 3306 (2023). (Be sure you are reviewing the most recent version of the law.) Below are a few examples.
Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, and psilocybin.
Schedule II includes drugs such as raw opium, oxycodone, codeine, cocaine, fentanyl, and meth.
Schedule III includes drugs such as pentobarbital, buprenorphine, and ketamine.
Schedule IV includes drugs such as barbital, diazepam (Valium), and lorazepam (Ativan).
Schedule V includes therapeutic medicines containing low amounts of codeine or other narcotics combined with non-narcotic active ingredients.
Penalties for Possessing Controlled Substances in New York
Possessing controlled substances without a valid medical prescription is illegal in New York. Penalties vary widely according to the type and amount of substance involved. New York law sets out specific types of drugs (and their amounts) that can result in felony convictions for possession. The class of felony depends on how dangerous the drug is and how much the person possesses. Any drug not listed as a felony is a misdemeanor.
Below, we review penalties for first- through seventh-degree possession crimes. (The sixth-degree crime no longer exists.) The penalties listed are for first offenses only. New York imposes harsher penalties for repeat offenses. (N.Y. Penal Law § 70.70 (2023).)
First-Degree Criminal Possession of a Controlled Substance: Class A-I Felony
Possessing eight or more ounces of controlled substances listed as narcotic drugs, or 5,760 milligrams or more of methadone, is a class A-I felony. Penalties include at least 8 and up to 20 years in prison, a fine of up to $100,000, or both.
(N.Y. Penal Law §§ 70.71, 80.00, 220.21 (2023).)
Second-Degree Criminal Possession of a Controlled Substance: Class A-II Felony
It's a class A-II felony to possess the following amounts and types of controlled substances:
- four or more but less than eight ounces of controlled substances listed as narcotic drugs
- two or more ounces of methamphetamine
- 10 grams or more of a drug classified as a stimulant
- 25 milligrams or more of LSD
- 625 milligrams or more of a drug classified as a hallucinogen
- 25 grams or more of a hallucinogenic substance, or
- 2,880 milligrams or more but less than 5,760 milligrams of methadone.
Penalties include at least 3 years and up to 10 years in prison, a fine of up to $50,000, or both.
(N.Y. Penal Law §§ 70.71, 80.00, 220.18 (2023).)
Third-Degree Criminal Possession of a Controlled Substance: Class B Felony
It is a class B felony to possess the following specified amounts and types of drugs:
- one-half ounce or more but less than four ounces of a narcotic drug
- five grams or more but less than 10 grams of a stimulant
- five milligrams or more but less than 25 milligrams of LSD
- five grams or more but less than 25 grams of a hallucinogenic substance, or
- 1,250 milligrams or more of phencyclidine (PCP).
Penalties include one to 9 years in prison, a fine of up to $30,000, or both.
(N.Y. Penal Law §§ 70.70, 80.00, 220.16 (2023).)
Fourth-Degree Criminal Possession of a Controlled Substance: Class C Felony
It's a class C felony to possess the following:
- one-eighth ounce or more but less than one-half ounce of a narcotic controlled substance
- one-half ounce or more but less than two ounces of methamphetamine
- one gram or more but less than five grams of a stimulant
- one milligram or more but less than five milligrams of LSD
- 25 milligrams or more but less than 625 milligrams of a hallucinogen
- one gram or more but less than five grams of a hallucinogenic substance
- 10 ounces or more of a drug classified as a dangerous depressant
- two pounds or more of a depressant
- 250 milligrams or more but less than 1,250 milligrams of PCP
- 360 milligrams or more but less than 2,880 milligrams of methadone
- 4,000 grams or more of ketamine, or
- 200 grams or more of gamma-hydroxybutyric acid (GHB).
Penalties include one to 5 ½ years in prison, a fine of up to $15,000, or both.
(N.Y. Penal Law §§ 70.7, 80.00, 220.09 (2023).)
Fifth-Degree Criminal Possession of a Controlled Substance: Class D Felony
A class D felony results when someone possesses:
- one-half ounce or more of a narcotic preparation
- 50 milligrams or more but less than 250 milligrams of PCP
- 500 milligrams or more of cocaine
- 1,000 milligrams or more but less than 4,000 milligrams of ketamine, or
- 28 grams or more but less than 200 grams of GHB.
Penalties include one to 2 ½ years in prison, a fine of up to $5,000, or both.
(N.Y. Penal Law §§ 70.70, 80.00, 220.06 (2023).)
Seventh-Degree Criminal Possession of a Controlled Substance: Class A Misdemeanor
It is a class A misdemeanor to possess any controlled substance not specified above (excluding marijuana—see below). It's also a misdemeanor to possess controlled substances in amounts lower than specified above. Possession of a "residual amount" of a drug, however, is not a violation.
Penalties for Class A misdemeanor drug possession include a fine of up to $1,000, up to 364 days in jail, or both.
(N.Y. Penal Law §§ 70.15, 80.05, 220.03 (2023).)
Possession of Marijuana in New York
Like many states, New York has relaxed at least some of its laws on marijuana possession. Possessing two ounces or less isn't a crime, and is only subject to a civil fine. Possessing more than that can be a misdemeanor or a felony, depending on the amount. For more specific information, see this article New York's Marijuana Laws.
Possession of Drug-Related Objects in New York
Possessing legal substances or objects with the intent that they be used to manufacture or sell controlled substances is a crime in New York. Forbidden items include:
- substances used to "cut" controlled substances (called "dilutants" or "adulterants")
- drug packaging materials such as baggies, vials, and capsules, and
- scales for weighing drugs.
A first offense is a Class A misdemeanor and a second offense is a Class D felony.
(N.Y. Penal Law §§ 220.50, 220.55 (2023).)
Defenses to Drug Possession Crimes in New York
As in any criminal case, one or more common defenses might apply. Also, criminal defense attorneys often argue to the jury that the prosecutor failed to prove the crime beyond a reasonable doubt.
Lack of knowledge. Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs and knew what the drugs were. A defendant might argue they thought the white pills were aspirin or that they had no idea how the drugs got into their gym bag.
Unlawful search. Another common defense strategy in drug possession cases is to challenge the legality of the search that led to the drugs. If police conduct an illegal search, typically, the evidence (the drugs) must be excluded. Without evidence of the drugs, the prosecution doesn't have much of a case.
Overdose immunity. New York provides immunity from charges or prosecution for drug possession to a person who seeks medical assistance in good faith for a drug overdose. This immunity applies to the overdose victim and Good Samaritan. (N.Y. Penal Law § 220.78 (2023).)
Talk to an Attorney
Drug possession convictions can result in prison time and harsh fines. It's important to consult an experienced, criminal defense attorney who can review the facts of your case and assess whether any defenses apply. An attorney who practices in the city or county where you face charges should have a good idea of what your options are—including whether diversion programs like drug court are available. An experienced attorney should also know whether a good plea deal might be possible, or if you should instead go to trial.
