220.03 Criminal Possession of a Controlled Substance in the Seventh Degree

220.03 Criminal Possession of a Controlled Substance in the Seventh Degree

You got arrested in New York with a small amount of drugs. Maybe traces of cocaine on a table, residual powder in a plastic bag, a couple of pills without a prescription. The charge sheet says “Penal Law 220.03” or “Criminal Possession of a Controlled Substance in the Seventh Degree.” You’re trying to figure out: Is this a felony or a misdemeanor? How much jail time am I facing? Can I get this reduced or dismissed before it becomes a permanent criminal record?

Thanks for visiting Spodek Law Group – we’re a second generation law firm managed by Todd Spodek, with over 40 years of combined experience defending drug possession cases in New York. We’ve handled cases that made national headlines, like representing Anna Delvey, and we understand that when you’re charged with seventh degree possession, you need to know what that actually means for YOUR case – not legal abstractions, but what happens to you in the next days and weeks. This article explains what “seventh degree” means (it’s the LOWEST drug charge in New York, not the highest), what penalties you’re facing, two critical exceptions that might apply to your situation, and how to challenge the charge before you end up with a criminal record.

Seventh Degree

Seventh degree sounds serious. It’s not – at least not compared to the alternatives. Penal Law §220.03 defines seventh degree possession as the LOWEST level drug possession charge in New York. The statute says you’re guilty if you “knowingly and unlawfully” possess a controlled substance. That’s it. No weight threshold. No specific drug type required. ANY controlled substance, in any amount, can be charged as seventh degree possession.

New York’s drug possession charges run from seventh degree (bottom rung) up through fifth degree, fourth degree, third degree, second degree, first degree (top of the ladder). Seventh degree is a Class A misdemeanor – maximum one year in county jail. Fifth degree and up are felonies – state prison time, mandatory minimums, life-altering consequences. The difference between seventh degree and fifth degree is often just the weight: small personal-use amounts get charged as seventh degree, larger amounts trigger felony charges.

What qualifies as “small amount”? Traces of cocaine, residual heroin powder, pills without a prescription, small MDMA or ketamine quantities. Not selling amounts – personal use. Prosecutors charge seventh degree for minimal amounts, felonies for larger quantities or evidence of intent to sell.

Why this matters: misdemeanor versus felony is the difference between county jail and state prison. Seventh degree is “the least serious drug possession charge” – but it’s still a criminal charge that creates a permanent record and can impact your job, housing, licensing, and immigration status.

If You’re Convicted

Class A misdemeanor means **up to 1 year in jail** plus **up to 3 years probation**. That’s the maximum. Most people don’t get the maximum, especially first-time offenders. But the possibility is there, and judges have discretion. If you plead guilty without negotiating, you’re at the mercy of the sentencing judge. Here’s what else can happen. Conditional discharge: comply with court conditions for a year, case dismissed. Adjournment in Contemplation of Dismissal (ACD): stay out of trouble 6-12 months, charge dismissed entirely. Reduced to non-criminal violation: negotiate a plea to a violation (like a traffic ticket), no criminal record. Outright dismissal: if evidence is weak or search was illegal, case dismissed before trial. First-time offenders with competent lawyers often get conditional discharge or ACD. Prosecutors know seventh degree is the lowest rung – they’re willing to negotiate if your lawyer presents a strong defense or mitigating circumstances.

The criminal record problem: a conviction shows up on background checks (employers, landlords, licensing boards see it). For non-citizens, drug convictions can trigger deportation. Fighting for ACD or non-criminal violation matters – those outcomes don’t create a criminal record.

Constitutional angle: New York criminalizes possession of ANY amount. Residual powder – literal dust – can mean up to one year jail. The statute gives prosecutors unlimited discretion to charge trace amounts as crimes. Most defendants plead guilty because they can’t afford lawyers who know how to challenge the charge.

Two Exceptions

The statute contains two important exceptions that can make the charge disappear entirely – but only if you know about them and your lawyer asserts them.

**Exception #1: Residual amounts in syringes.** The statute says it’s NOT a violation of 220.03 if you possess a “residual amount” in a hypodermic syringe or needle. If police find a used syringe with drug traces – not a full syringe, but residue – the statute excludes that from seventh degree possession. Why? Public health policy. New York wants needle users to carry syringes without fear of prosecution for residue. Encouraging safe needle use reduces disease transmission.

**Exception #2: Seeking emergency medical help for an overdose.** The statute says it’s NOT a violation if drug possession is discovered while you’re seeking emergency care for someone experiencing an overdose. You call 911 because your friend overdosed. Police arrive, find drugs in your pocket while EMTs work on your friend. The statute says: no violation. This is New York’s Good Samaritan law – designed to save lives by encouraging people to call for help without fear of prosecution.

The constitutional problem: the statute says “no violation,” but police arrest you anyway. You’re still booked, jailed, and must prove the exception months later in court. That’s not immunity – that’s delayed punishment. The law says you’re not guilty, but you suffer arrest consequences regardless.

Real example: Client called 911 when his roommate overdosed. Police found heroin in our client’s pocket, arrested him. We argued the Good Samaritan exception – he was seeking emergency care when drugs were discovered. Judge dismissed the charge. But our client spent 24 hours in jail, missed work, paid thousands in legal fees. The statute said “no violation,” but he was punished anyway.

Most seventh degree possession cases can be challenged – if your lawyer knows what to look for. **Unlawful search and seizure** (Fourth Amendment defense). Police need reasonable suspicion to stop you and probable cause to search you. If they stopped you for “walking suspiciously” at 2am, or pulled you over for a pretextual traffic violation and then searched your pockets without consent, the search might be unconstitutional. Your lawyer files a motion to suppress the evidence, arguing the stop or search violated your Fourth Amendment rights. If the judge agrees, the drugs found during the illegal search are inadmissible. No evidence = no case. Most 220.03 prosecutions begin with questionable stops and searches. Challenge the legality, you can collapse the case.

**Lawful possession** (prescription defense). If you have a valid prescription for the drug – Xanax, Adderall, oxycodone – it’s lawful possession under Public Health Law §3381, not criminal. Even if the pills weren’t in the prescription bottle when you were arrested. Prosecutors sometimes charge people who have prescriptions because the pills were loose in a pocket or bag. Your lawyer presents the prescription records, argues lawful possession, charge dismissed.

**Constructive possession challenge**. Prosecution must prove YOU possessed the drugs, not just that drugs were near you. Drugs found in a car with three passengers – whose drugs? Unless the drugs were in your pocket or you admitted ownership, the prosecution must prove constructive possession: you knew the drugs were there AND you had control over them. Courts require proof of possession beyond mere proximity.

**Lab testing challenge**. Police field tests have 10-30% false positive rates. Test turns blue, you’re charged with possession. Lab results take months. When they come back, the substance might not be a controlled substance at all. Your lawyer demands lab confirmation before any plea. If lab says “not cocaine” or “inconclusive,” charge dismissed.

Real example: Client arrested based on field test for “heroin.” Lab results five months later: substance was a synthetic compound not listed as a controlled substance. Charge dismissed. If he’d pleaded guilty at arraignment, he’d have a criminal record for something that wasn’t even illegal.

We’ve defended hundreds of seventh degree possession cases in New York courts. If you were arrested in the last 24-48 hours, you have a short window to challenge the search and assert the exceptions. Your next move: talk to someone who knows how to fight seventh degree charges. We’re available 24/7 at 212-300-5196.