Possession of a Controlled Substance in New York

Possession of illegal drugs in New York can result in jail or prison time, depending on the amount and type of drug possessed. This article reviews penalties for illegal possession of controlled substances and cannabis in New York.

How New York Classifies Controlled Substances

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. Schedule V drugs have the lowest potential for abuse. Cannabis is not a scheduled drug but is still regulated.

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 (2024). (Be sure you are reviewing the most recent version of the law.) Below are a few examples.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, and psilocybin.

Schedule II includes drugs such as raw opium, oxycodone, codeine, cocaine, fentanyl, and meth.

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.

What Are the Penalties for Illegal Drug Possession in New York

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 (2024).)

First-Degree Criminal Drug Possession in NY: Class A-I Felony

It's a class A-I felony to unlawfully possess:

• 8 or more ounces of a narcotic drug, or
• 5,760 milligrams or more of methadone.

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 (2024).)

Second-Degree Criminal Drug Possession in NY: Class A-II Felony

It's a class A-II felony to possess the following amounts and types of controlled substances:

• 4 or more but less than 8 ounces of a narcotic drug
• 2 or more ounces of methamphetamine
• 10 grams or more of a drug classified as a stimulant
• 25 milligrams or more of LSD
• 625 milligrams or more of a drug classified as a hallucinogen
• 25 grams or more of a hallucinogenic substance, or
• 2,880 milligrams or more but less than 5,760 milligrams of methadone.

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 (2024).)

Third-Degree Criminal Drug Possession in NY: Class B Felony

It is a class B felony to possess the following specified amounts and types of drugs:

• one-half ounce or more but less than 4 ounces of a narcotic drug
• 5 grams or more but less than 10 grams of a stimulant
• 5 milligrams or more but less than 25 milligrams of LSD
• 5 grams or more but less than 25 grams of a hallucinogenic substance, or
• 1,250 milligrams or more of phencyclidine (PCP).

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 (2024).)

Fourth-Degree Criminal Drug Possession in NY: Class C Felony

It's a class C felony to possess the following:

• one-eighth ounce or more but less than one-half ounce of a narcotic
• one-half ounce or more but less than 2 ounces of methamphetamine
• one gram or more but less than 5 grams of a stimulant
• one milligram or more but less than 5 milligrams of LSD
• 25 milligrams or more but less than 625 milligrams of a hallucinogen
• one gram or more but less than 5 grams of a hallucinogenic substance
• 10 ounces or more of a drug classified as a dangerous depressant
• 2 pounds or more of a depressant
• 250 milligrams or more but less than 1,250 milligrams of PCP
• 360 milligrams or more but less than 2,880 milligrams of methadone
• 4,000 grams or more of ketamine, or
• 200 grams or more of gamma-hydroxybutyric acid (GHB).

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 (2024).)

Fifth-Degree Criminal Drug Possession in NY: Class D Felony

A class D felony results when someone possesses:

• one-half ounce or more of a narcotic preparation
• 50 milligrams or more but less than 250 milligrams of PCP
• 500 milligrams or more of cocaine
• 1,000 milligrams or more but less than 4,000 milligrams of ketamine, or
• 28 grams or more but less than 200 grams of GHB.

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 (2024).)

Seventh-Degree Criminal Drug Possession in NY: Class A Misdemeanor

It is a class A misdemeanor to possess any controlled substance not specified above (excluding cannabis—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 (2024).)

How New York Regulates Cannabis Possession and Use

New York regulates cannabis separately from controlled substances.

Is Weed Legal in New York?

Adults age 21 and older may possess, use, transport, or buy up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis. Cannabis cannot be smoked in areas where smoking tobacco is prohibited. A violation of either prohibition carries civil penalties.

Criminal Possession of Cannabis in New York

Possessing more than 16 ounces of cannabis or 5 ounces of concentrated cannabis can result in criminal penalties.

Class A misdemeanor. It's a class A misdemeanor to possess between 16 ounces and 5 pounds of cannabis or between 5 ounces and 2 pounds of concentrated cannabis. This is considered third-degree criminal possession of cannabis. Penalties for Class A misdemeanor drug possession include a fine of up to $1,000, up to 364 days in jail, or both.

Class E felony. Class E felony penalties apply when a person possesses between 5 and 10 pounds of cannabis or 2 to 4 pounds of concentrated cannabis. This offense is second-degree criminal possession of cannabis. Penalties include 12 to 18 months in prison, a fine of up to $5,000, or both.

Class D felony. Possession of more than 10 pounds of cannabis or 4 pounds of cannabis contrate is a class D felony. This offense is first-degree criminal possession of cannabis. Penalties include one to 2 ½ years in prison, a fine of up to $5,000, or both.

(N.Y. Penal Code §§ 222.05, 222.10, 222.25, 222.30, 222.35, 222.40 (2024).)

Unlawful Possession or Use of Drug Paraphernalia in New York

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:

• substances used to "cut" controlled substances (called "dilutants" or "adulterants")
• drug packaging materials such as baggies, vials, and capsules, and
• scales for weighing drugs.

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 (2024).)

Defenses to Drug Possession Crimes in New York

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 limited 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 (2024).)

Talk to an Attorney

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.