New York Criminal Sale of Controlled Substance Third Degree's (PL 220.39) Surprising Definition of Sale

My very first felony jury trial victory, that came way back in the early 1990's, when I was fresh out of law school, involved the allegation of a sale of one ten thousandths of an ounce of heroin.  And lest you think that the sale of one ten thousandths of an ounce of heroin couldn't possibly be that big a deal, you should know that the Judge was planning to put my client away for more than a decade if he got convicted.

How is this possible, you ask?  It is possible because of the strange world of "Criminal Sale of a Controlled Substance" charges in New York.  One of the most common of the drug possession charges is "Criminal Sale of a Controlled Substance in the Third Degree" a class B drug felony.  B felony charges are among the most serious charges in New York State and carry the potential of years and years in prison.

There are three aspects of criminal sale of a controlled substance in New York that most people find shocking when they hear about it for the first time. 

The first is the staggering amount of prison time that is potentially on the table even for a first arrest.

The second is what "sale" means as far as New York Criminal Court is concerned.  Under our law in New York, sale doesn't just mean an exchange of drugs for money.  Sale is specifically defined by our Legislature to include "to give".  You read correctly.  You can "sell" controlled substance in New York by giving controlled substance away.  This is the law.  This is real.  And this makes criminals out of a great many people.

For example, perhaps you may have heard of someone who has given a friend a prescription painkiller from their own personal prescription bottle.  Just one.  Maybe for a perfectly nice reason.  That person is guilty of criminal sale of a controlled substance in the third degree and is subject to a prison term measured in years, not days.  That person is a drug dealer, according to our law.  Now people don't like to think of themselves as drug dealers, but the application of our law makes it so.

The third aspect of criminal sale of a controlled substance in the third degree, a class B drug felony, that most people find shocking, is that there is NO MINIMUM AMOUNT SPECIFIED.  People often hold the mistaken view that they can't be accused of a serious offense unless there is some sort of serious amount of drugs involved in the "sale".  Therefore, what's the big deal with one pill?


There is no minimum amount of drugs required to be guilty of criminal sale of a controlled substance in the third degree.  There is no "just residue" exception to the law.  This means that if a laboratory test somehow revealed that a bag that was empty to the naked human eye that you gave to someone else contained even just one molecule of a controlled substance, you are a drug dealer and you are guilty of criminal sale of a controlled substance in the third degree.

And this was essentially how I ended up on trial with a case where my client was accused of "selling" a bag of heroin that contained one ten thousandths of an ounce of heroin.  My client was arrested for the drug sale and vehemently proclaimed his innocence.  Sadly, he was addicted to heroin at the time and confessed that he had bought and possessed heroin and that he was with another person who had done the same.  An undercover police officer claimed to have observed my client make an exchange with the other person, thereby satisfying the exchange requirement.  He did not testify that he observed the other person actually open and use the contents of the bag, and instead claimed that the field team moved right in and arrested the two of them.

The problem for his case, however, was that the bag of heroin that was supposedly unused contained, I noticed in the lab report, a very small quantity of heroin, that I determined to be one ten thousandths of an ounce and confirmed with the government's laboratory expert.  This suggested there was a credibility problem unless it is believed that people are in the business of selling one ten thousandths of an ounce of heroin.  In combination with several other lapses in credibility of the undercover officer, including an aggressive arrogance on the witness stand, led the jury to acquit my client of the criminal sale of controlled substance.  This spared my client more than a decade in prison.

Unrelated but Nice Storybook Post Script to This Drug Sale Case

A very nice post script to this story came years later, on the very last day of my employment at the Legal Aid Society where I had been working.  On the afternoon of my last day at The Legal Aid Society, my phone rang.  I almost didn't even answer it.  I was leaving and I had my sights set on starting the business that would become Shalley and Murray.  But almost for old time's sake, I decided to pick up the phone one last time as a public defender.

It was this very client from the first jury trial I had won as a new lawyer.  He asked if I remembered him, and of course I did.  What lawyer wouldn't remember his first jury trial victory?  He called me to tell me that he wanted to thank me for helping him and winning his case.  He let me know that he had managed to escape from the grip of his heroin addiction after we won his case and he was released from jail.  He had, over the last few years, rebuilt his life and had built a successful business.  Had I not won the case, he told me, he would have gone to prison for a very long time and his life would have taken a very different and darker path.  That phone call is one of my cherished memories of my career and is something I think about to remind me of the importance and value of what I do.