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.
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 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.
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).)
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).)
It's a class A-II felony to possess the following amounts and types of controlled substances:
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).)
It is a class B felony to possess the following specified amounts and types of drugs:
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).)
It's a class C felony to possess the following:
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).)
A class D felony results when someone possesses:
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).)
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).)
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.
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:
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).)
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).)
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.