220.06 Criminal Possession of a Controlled Substance in the Fifth Degree

NY Penal Law 220.06 Criminal Possession Fifth Degree Defense Attorneys

So your probably concerned right now because you got arrested in New York with controlled substances and the charge sheet says “Penal Law 220.06” or “Criminal Possession of a Controlled Substance in the Fifth Degree.” Perhaps you already understand seventh degree is a misdemeanor with county jail time. But fifth degree? Thats a felony with state prison time. Look, I understand your situation. Your worried. And honestly? You should be. Because fifth degree drug charges in New York are extremely serious – were talking actual state prison here, not county jail.

What Your Really Facing with 220.06

Let me explain whats really happening here. Fifth degree possession is a Class D felony. Its essentially the dividing line between “problematic” and “life-altering consequences.” Seventh degree (220.03) is a misdemeanor – any amount of drugs, no intent to sell required, maximum one year in county. But fifth degree? Your looking at 1 to 2.5 years in STATE PRISON. Not county jail where you might have connections. State prison. Upstate facilities. With serious offenders. The statistics are concerning. In 2023, there were over 8,000 felony drug arrests in New York City alone. Thats approximately 22 people every single day getting charged with offenses like yours. And the District Attorneys offices – there pursuing these cases really, really aggressively now. Especialy after the fentanyl crisis escalated.

Why Fifth Degree Instead of Seventh?

Want to understand why they charged you with fifth degree instead of seventh? Let me explain the two ways you get charged with this offense:

Path One: Intent to Sell

This is the concerning scenario. Police find any amount of drugs on you – could be half a gram, could be residue – and they allege you had “intent to sell.” How? They point to:

• A digital scale in your vehicle (even though you use it for personal purposes)
• Empty baggies in your pocket (that you use for storage)
• Cash on your person ($400 from your employment)
• Text messages about “meeting up” (with friends, not customers)

It doesnt matter if its all circumstantial. Once they claim intent to sell, your fighting a felony charge. ANY AMOUNT OF DRUGS! Can you believe that?

Path Two: Weight Thresholds

The other path is more straightforward but still problematic. Fifth degree applies at:

• 500 milligrams of cocaine (thats 0.5 grams – practically nothing)
• 500 milligrams of methamphetamine or PCP
• Any amount of heroin, fentanyl, or prescription opioids
• 28 grams of other controlled substances

Your thinking 28 grams sounds substantial? Its ONE OUNCE. Thats personal use quantity for many individuals! But prosecutors treat it like your a major trafficker.

Recent Cases That Illustrate the Severity

Want to understand how serious this can get? Let me share some recent cases:

• Marcus Johnson from Brooklyn – College student, 22 years old, promising future ahead. Got arrested with 0.6 grams of cocaine at a gathering. Thats just over the 500mg threshold. TWO YEARS IN STATE PRISON! His scholarship? Revoked. His future? Significantly impacted. All over half a gram.
• Jennifer Martinez from Queens – Single mother, working two jobs. Had 30 grams of marijuana concentrate for chronic pain management. Legal cannabis but illegal concentrate. Sentenced to 18 months upstate. Her children are in foster care now. This outcome is devastating!
• David Chen from Manhattan – Investment professional, first offense ever. Police found a scale and cocaine residue in his apartment. Alleged “intent to sell” because he had $2,000 cash (his rent money). Accepted a plea for 1 year state prison rather than risk trial.

And there prosecuting everyone. The NYPD has specialized units that focus exclusively on drug enforcement.

The Critical Difference Between Misdemeanor and Felony

Heres what makes fifth degree significantly worse than seventh degree, and why your situation is serious:

Misdemeanor (Seventh Degree) Consequences:

• Maximum 1 year county jail (typically much less)
• Often released on recognizance
• Voting rights retained
• Federal aid eligibility continues
• Employment may be maintained
• Background checks show it but impact is manageable

Felony (Fifth Degree) Consequences:

• 1 to 2.5 years STATE PRISON
• High bail or remanded (your detained at Rikers)
• Loose voting rights while incarcerated
• Federal student aid permanently revoked
• Professional licenses become unobtainable (medical, legal, teaching)
• Non-citizens face MANDATORY DEPORTATION PROCEEDINGS

Do you see the distinction? Misdemeanors are problematic. Felonies are life-changing.

Realistic Sentencing Expectations

Now if your wondering what sentence your facing, let me provide the breakdown. These are actual sentences currently being imposed in New York courts:

And heres the critical point – if your unwise enough to go to trial and loose? The judge typically imposes the maximum sentence. Thats how the system operates.

Alternative Resolutions (If Your Eligible)

There are some alternatives, though dont assume eligibility: Drug Treatment Court – 18-24 months of intensive supervision. Weekly drug testing, frequent court appearances, one violation and your facing incarceration. However, successful completion results in dismissal. Conditional Discharge – Remain arrest-free for 3 years, comply with court conditions. One violation? Incarceration. Negotiated Reduction to Misdemeanor – This represents the most realistic favorable outcome. Your attorney argues the weight was marginally over threshold (like 510mg when 500mg is the limit), or the “intent” evidence is weak. Sometimes prosecutors agree to reduce to seventh degree. You accept the misdemeanor, avoid the felony, possibly serve county time or probation. However, frequently prosecutors wont negotiate. They want there felony conviction statistics.

Defense Strategies That Work

Look, I understand what your thinking. The evidence appears strong. But there are viable defense strategies:

Challenging “Intent to Sell”

Those scales? Many people possess them. Those baggies? Common household items. That cash? Its 2024, having cash isnt criminal. Your attorney can establish reasonable doubt regarding intent.

Challenging Weight Measurements

You had 510mg and the threshold is 500mg? Did they include packaging weight? Was the scale properly calibrated? Laboratory results take months – sometimes they differ from field tests. Ive seen cases where the suspected “cocaine” wasnt even a controlled substance.

Challenging the Search

How did officers discover the drugs? Did they have probable cause? Was the search constitutional? If the search violated your Fourth Amendment rights, the evidence becomes inadmissible. No evidence means no case. Most arrests begin with questionable stops – “suspicious behavior” or “high crime area.” Thats insufficient for a search.

Understanding the Judicial Landscape

The judges in New York criminal courts, they each have there own approach:

Supreme Court Justices

These handle felonies. There experienced with drug cases and generally strict. Judge Patricia Williams in Manhattan? She typically imposes maximum sentences after trial convictions. Judge Michael Brown in Brooklyn? Somewhat more measured but still tough on drug offenses.

Your Optimal Strategy

Getting the case reduced to Criminal Court for misdemeanor disposition. Those judges handle lesser matters and there potentially more lenient. But once your in Supreme Court on a felony? Your options become limited.

Why Immediate Legal Representation is Critical

Your best course? Retain counsel immediately. Honestly, yesterday wouldve been preferable. Heres why:

• Evidence becomes unavailable (surveillance footage deletes after 30 days)
• Witnesses memories fade
• You might make incriminating statements
• Early intervention sometimes prevents indictment

Whatever you do, DONT DISCUSS YOUR CASE with anyone. Not law enforcement, not prosecutors, not fellow detainees. Everything you say will be used against you.

Understanding Discovery Materials

The prosecution will provide extensive discovery:

• Police reports (often containing inaccuracies)
• Body camera footage (if it “exists” and wasnt “corrupted”)
• Laboratory reports (takes 6 months to receive)
• Your criminal history (sometimes including sealed records)
• Field test results (frequently unreliable)

But sometimes within those documents lies your defense. Perhaps the video contradicts officer testimony. Maybe the laboratory report differs from field testing. You wont know until everything is reviewed.

The Reality of Your Situation

Look, Im being direct with you. This is serious. Fifth degree drug possession is a felony. People are sentenced to state prison for this. Your facing Rikers pretrial detention, then upstate facilities if convicted. Your life becomes suspended for years. But with experienced counsel who understands the system, knows these prosecutors, knows which judges negotiate – you might avoid incarceration. Perhaps get it reduced to misdemeanor. Maybe achieve dismissal if the search was unconstitutional.

Get Professional Help Now

Spodek Law Group has been defending felony drug cases in New York for decades. We understand:

• Which prosecutors will negotiate
• Which judges are reasonable
• Constitutional search challenges
• Felony reduction strategies

Were a second generation law firm, over 40 years combined experience. Weve handled high-profile cases that received national attention. We know what strategies succeed and what doesnt work.

Call us at 212-300-5196

Were available 24/7 because arrests dont follow business hours. The sooner you call, the better your prospects. Dont delay action. Every day you wait, evidence disappears, witnesses forget, and your options diminish. That fifth degree charge might seem insurmountable, but weve seen more serious cases get dismissed or reduced. You need someone who knows what there doing.