What is Criminal Possession of a Controlled Substance in the Seventh Degree?

What is Criminal Possession of a Controlled Substance 7th Degree?

Explore in detail New York Penal Law Section 220.03 with explanations and commentary from New York City Criminal Lawyer Don Murray.  The following article will lay out the exact language of the law (in italics like this) and Don Murray will add explanations and commentary [in brackets like this] so that you can actually understand some of the issues involved when a person is charged with this offense.  

S 220.03 Criminal possession of a controlled substance in the seventh degree.

[People often wonder about the significance of the "degree" of an offense.  It really isn't all that mysterious.  Often, the legislature defines a series of related offenses in a ladder of increasing seriousness.  Each different, increasing level of seriousness, represents a more serious crime.  It is tempting to imagine that the higher the number (or degree) of an offense, the MORE serious it is.  And this certainly could have been one way to do it.  But New York did NOT do it that way.  Custom in New York is that the higher the level or "degree" of a crime, the LESS serious it is.  Therefore, if a crime is in the "First" degree, that will generally be the most serious version of the offense there is in New York.  On the other hand, a very high level, or degree, like "Seventh" degree will mean that the offense is less serious.  In the case of Criminal Possession of a Controlled Substance, the 7th Degree is the highest degree there is in New York.  That means that Criminal Possession of a Controlled Substance in the Seventh Degree is the LEAST serious Criminal Possession of a Controlled Substance offense.  (Criminal Possession of a Controlled Substance in the FIRST degree would be the most serious version, and in fact carries penalties similar to the penalties associated with a murder case.]

A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully  possesses a controlled  substance;  

[So Criminal Possession of a Controlled Substance in the Seventh Degree is a pretty straightforward offense, in that there aren't a lot of different versions (or flavors if you have been reading my other commentaries on the laws).  This is it.  No subsections.  No paragraphs.  No fuss.  No muss.  But even in a simple one trick pony like this, there are still a few requirements in the "recipe" for this crime.

In order to be guilty of this offense, a person must 1) knowingly and unlawfully possess something, and 2) that something must be a controlled substance.

On its face, it really couldn't get any simpler, right?  Were you in possession of something?  That seems pretty simple.  And was that something a controlled substance?  Very Simple.

Not So Fast...  What about this Business of Possession?

Hidden in this simplicity, however, there is some tricky stuff.  Without trying to sound ridiculous, the idea of possession is a bit trickier than you probably realize.  Of course possession includes things like the object in question being in your pocket or your hand when the police see you.  But many people get extremely upset about being charged with possession of something when that something is not physically "on them" when actually arrested by the police.  Part of the reason that this is possible is that the law is not a fool.  The law may seem foolish, at times, but the law is not in general a fool.  Therefore, if a police officer observes a person take something from his pocket and throw it to the ground, the person can still be arrested, prosecuted and convicted for possessing that object, even though by the time the police actually put handcuffs on him, the object is not in his possession (any more).  The fact that the object is not "on him" when he is arrested doesn't matter.  In order for the Government to make its case, it just means that a police officer would simply need to be able to testify truthfully that he observed the accused throw the object away, and that he recovered the object.  Obviously, if the theory of the defense is that the police officer made that up, it is a perfectly legitimate defense and the defendant may be successful if the jury believes that the police officer is lying.

Possession is a far bigger concept than what a person happens to be holding in his hands at a particular moment.  The law considers me to be in possession quite a few things that I am not now holding in my hand, some of which I could never hold in my hand.  I possess my house and my car and I will never hold either one in my hand.  I possess a pen that is sitting on my desk now as I type this article, but I am not now holding it in my hand.  

In the context of criminal cases, furthermore, the law imposes certain "presumptions of possession" in addition to our normal rules about what it is that we possess.  These presumptions, that apply when we are in vehicles and in our homes, are extremely powerful tools that the Government uses every day to be able to prosecute people for criminal possession of drugs and weapons.  Essentially, these presumptions allow the Government to arrest, prosecute and convict people of criminal possession of a controlled substance in the seventh degree (and other degrees of the offense as well) based only on the fact that the drugs and the accused were in the same car.  This means that if you happen to be in a car in which a controlled substance is found, you can be arrested, prosecuted, and convicted based on your presence in the car alone.  This automobile presumption is not technically mandatory, but a jury is advised that they are allowed to find you guilty if they want to using the presumption.

Knowing and unlawful

The possession must be knowing and unlawful.  This knowing requirement is meant to avoid being held responsible for possession when you have no idea about the drugs being in your possession.  For example, if someone hands you a bag to carry for them as you walk somewhere and the bag turns out to have a controlled substance in it, you would have a defense that you were not aware that the substance was in the bag.  In other words, you possessed it, because you were carrying the bag, but your possession was not "knowing".

The unlawful requirement is meant to not make you a criminal for possession of a controlled substance that is prescribed by a Doctor.  If you have a controlled substance like say, Percocet, but you have a prescription, you are in possession of a controlled substance, that possession is knowing because it is your prescription and you know you have it, but your possession is not unlawful because you have a prescription from a Doctor.

How Much is Enough?

Notice that the law does not talk about a particular amount required.  Most drug laws talk about a certain weight that is required to be considered in violation of the laws.  Criminal Possession of a Controlled Substance in the 7th Degree, however, doesn't mention weight.  So does this mean that ANY amount of a controlled substance is a crime to possess knowingly and unlawfully?

This was a question that for a time was hotly debated on the theory that the law ought not apply to "residue" amounts.  What if, for example, a person is found to be in possession of a vial that has nothing visible to the human eye in it, but that testing reveals does actually contain a teeny tiny amount invisible to the naked eye?  Should invisible amounts of a controlled substance "count" for purposes of this law?  For a while the law wrestled with this issue, but ultimately, our courts decided that the legislature meant what it said exactly.  Therefore, there is no amount of controlled substance that can be lawfully and knowingly possessed - not even one molecule.  Therefore, if you have even one molecule of a controlled substance, you could be guilty of knowingly and unlawfully possessing a controlled substance in the seventh degree.

But wait...Things changed in some very limited circumstances...Read this newer section of the law...

provided,  however,  that  it  shall  not  be  a violation of this section when a person possesses a residual amount of a controlled substance and that residual amount is in or on  a  hypodermic syringe  or hypodermic needle obtained and possessed pursuant to section thirty-three hundred eighty-one of the public health law, which includes the state's syringe exchange and  pharmacy and  medical  provider-based expanded  syringe  access  programs;

nor shall it be a violation of this section when a person's unlawful possession of a controlled substance is discovered as a result of seeking immediate health care  as  defined  in paragraph  (b)  of subdivision three of section 220.78 of the penal law, for either another person or him  or  herself  because  such person  is experiencing  a  drug  or  alcohol  overdose  or  other life threatening medical emergency as defined in paragraph (a) of  subdivision  three of section 220.78 of the penal law.

[This newer section of the law addressed a "residual amount of a controlled substance" in some limited but important circumstances.  Under this newer section of the law, the legislature was looking to solve two particular uncomfortable problems.  The first problem was the fact that the Government was providing syringes in syringe exchange programs designed to help prevent the spread of AIDS and other diseases caused by drug addicts reusing syringes.  It would seem problematic for the Government to create a program to accept used syringes and at the same time criminalize the act of possession of the residue in the turned in syringe.  Therefore, this provision of the law now makes it no longer a violation of Criminal Possession of a Controlled Substance in the Seventh Degree to be in possession of a residue amount of drugs in a syringe turned in pursuant to a Government program.

The second exception relates to the fear that people in need of medical attention, such as drug users experiencing medical crises, will refuse to seek treatment out of a fear that they will be discovered to be in possession of drugs and then arrested.  In making a limited exception for the people seeking treatment or those helping people seek treatment, the legislature made the determination that it would prefer that people get the medical treatment they need and not die, rather than keeping open the option to arrest people for criminal possession of a controlled substance in the seventh degree.]

Criminal possession of a controlled substance in the seventh degree is a class A misdemeanor.

[As the lowest in serious form of criminal possession of a controlled substance, CPCS 7 is a Class A misdemeanor, not a felony.  This means that it carries no mandatory jail sentence.  Conviction for CPCS 7 can result in a conditional discharge (self supervised probation), standard 3 years probation, or a jail sentence of time served all the way up to a maximum of one year in prison.

The reality is that if a person is only charged with criminal possession of a controlled substance in the seventh degree, the likelihood of a jail sentence of one year is about the same likelihood (in New York City) as a comet blasting the Earth into a billion pieces tomorrow.  Generally, these days, the prosecutor offices in NYC are more interested in getting people help for drug addiction problems than in spending lots of resources to imprison people for them.  The Courts have treatment court options that can lead to cases being outright dismissed.  And there is straight up negotiation possible for an initial arrest or two for misdemeanor level offenses.  As a person racks up multiple misdemeanor cases, or starts moving up the ladder in terms of seriousness into felony matters, things can get complicated real fast.  Drug cases are serious and can pose substantial issues outside the context of criminal court that require that you carefully review your case with an experienced criminal lawyer.  But managed properly, a criminal possession of a controlled substance in the seventh degree matter can be put behind you.]


BY DON A. MURRAY, ESQ.

I have been a New York City criminal defense lawyer for more than 27 years helping people accused of criminal possession of a controlled substance in the seventh degree and other crimes in NYC Criminal Courts.  Call me at 718-268-2171 to discuss your case.

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If you enjoyed this article, you might be interested in a discussion of the surprising definition of the word "sale" in criminal sale of a controlled substance cases in New York.