NY Penal Law 220.09: Charges, Presumptions, and Defenses

New York Penal Law 220.09, criminal possession of a controlled substance in the fourth degree, is a Class C felony that applies when someone knowingly possesses a controlled substance at or above a weight threshold set by the statute for that specific drug.¹ A first-time offender faces one to five and a half years in state prison, with probation available in some cases. The charge covers fifteen categories of drugs, and the weight required to trigger it varies from a single milligram of LSD to two pounds of a depressant.

What Triggers a 220.09 Charge

The statute is entirely weight-driven. Prosecutors have to prove both knowing possession and that the substance met or exceeded the threshold set for its category. For drugs typically sold as mixtures, the aggregate weight of the whole mixture counts, so heavily diluted product still weighs in at full mixture weight. For drugs measured by chemical content, only the pure weight of the drug itself counts.¹

Narcotic drug (including cocaine and heroin): one-eighth of an ounce or more of a mixture.
Methamphetamine: one-half ounce or more of a mixture.
Narcotic preparation: two ounces or more of a mixture.
Stimulant: one gram or more (pure).
LSD: one milligram or more.
Hallucinogen: twenty-five milligrams or more.
Hallucinogenic substance: one gram or more.
Dangerous depressant: ten ounces or more.
Depressant: two pounds or more.
PCP: 250 milligrams or more.
Methadone: 360 milligrams or more.
PCP with intent to sell, if the person has a prior drug conviction: fifty milligrams or more.
Ketamine: four grams or more.
GHB: 200 grams or more of a mixture.

Because officers cannot determine precise weight or purity on scene, lab testing is central to almost every 220.09 case. Small measurement discrepancies matter. A result that falls just below the threshold drops the offense to a lesser charge, sometimes a misdemeanor.

What This Statute Does Not Cover

A frequent misunderstanding is that PL 220.09 covers narcotic possession with intent to sell. It does not. Any amount of a narcotic drug possessed with intent to sell falls under PL 220.16, criminal possession in the third degree, a Class B felony carrying substantially harsher sentencing.² The only intent-to-sell language inside PL 220.09 itself is the narrow PCP provision above, which requires both fifty milligrams and a prior drug conviction.¹

Sentencing for a 220.09 Conviction

As a Class C drug felony, PL 220.09 is sentenced under New York Penal Law 70.70. The applicable range depends on the defendant’s prior record.

For a first-time offender with no prior felony convictions in the past ten years, the sentence is a determinate prison term of one to five and a half years.³ A determinate sentence is a fixed number of years within that range, served with limited good-time credit and no parole board review. Probation is also available at the court’s discretion under PL 65.00, with a term of three, four, or five years for a Class C felony.⁴

For a second felony drug offender whose prior was non-violent, the range is one and a half to eight years. If the prior felony was a violent offense, the range moves to three and a half to nine years.³ The ten-year lookback that determines predicate status excludes time spent incarcerated, so a twelve-year-old conviction can still count if the defendant was locked up for part of that stretch.

Every determinate prison sentence carries a mandatory period of post-release supervision. For a first-time Class C drug offender, PRS runs one to two years. For second felony drug offenders, it runs one and a half to three years.⁵ Violating the conditions of PRS can send you back to prison.

Sentencing also triggers mandatory financial obligations that the court imposes regardless of ability to pay: a $300 surcharge, a $25 crime victim assistance fee, and a $50 DNA databank fee.⁶

Alternatives to State Prison

New York offers several routes that can keep a 220.09 defendant out of state prison, and in some cases avoid a felony record altogether.

Judicial Diversion

Under Criminal Procedure Law 216, a defendant charged with a Class C felony under Article 220 can apply for court-supervised drug treatment if the charge grew out of substance abuse. Eligibility requires no violent felony or Class A drug felony conviction in the past ten years, and defendants adjudicated as second or persistent violent felony offenders are excluded.⁷ Successful completion can lead to the court permitting the defendant to withdraw the guilty plea and dismissing the indictment, or allowing a plea to a reduced misdemeanor. The court can revoke participation for noncompliance and proceed to sentencing.

Willard

The Willard Drug Treatment Campus is a secure 90-day residential program operated by the Department of Corrections and Community Supervision. Certain individuals sentenced on Class C, D, and E drug felonies are eligible, and second felony offenders may use Willard as an alternative to a longer prison term.⁸

Youthful Offender Status

A defendant who was between sixteen and eighteen at the time of the offense may qualify for youthful offender adjudication under CPL 720.10. PL 220.09 does not trigger an automatic exclusion because it is not a Class A-I or A-II felony. A prior felony conviction, or a prior YO adjudication for a felony, disqualifies the defendant. If granted, YO status replaces the criminal conviction, the proceeding can be sealed, and the felony collateral consequences fall away. For an eligible young defendant, YO is usually the most valuable outcome the defense can pursue.

The Car and Room Presumptions

Two statutory presumptions catch defendants off guard. When a controlled substance is found in a car, everyone in the car is presumed to knowingly possess it.⁹ A passenger with no ownership of the drugs can be charged under PL 220.09 on that basis alone. The presumption does not apply if the drugs were hidden on one specific occupant’s body, if the vehicle is a licensed taxi or rideshare in normal service, or if an authorized person possesses the substance in its original container.

A parallel presumption applies when drugs are found in open view inside a private room under circumstances suggesting preparation for sale. Everyone in close proximity is presumed to possess them.⁹ Rebutting either presumption requires the defendant to put forward evidence of ignorance or lack of access, which can be difficult without strong supporting facts.

How These Cases Get Fought

Suppression is often the defense’s strongest tool. If police obtained the drugs through a search that violated the Fourth Amendment, a motion to suppress can knock out the evidence, and without the drugs the charge cannot stand. Whether suppression is viable depends on whether a recognized warrant exception, such as consent or the automobile exception, actually applied to the search.

Constructive possession is the second common battleground. When the drugs were not on the defendant’s person but in a shared space, prosecutors must prove dominion and control. Defense attorneys focus on lack of access to the hiding spot, absence of knowledge, and the absence of fingerprints, DNA, or other physical links to the substance. In multi-occupant scenarios, this can produce reasonable doubt about who actually controlled the drugs.

Weight itself is contestable. Because 220.09 turns on precise thresholds, the defense scrutinizes lab methodology, chain of custody, and whether the report properly distinguished aggregate weight from pure weight. A revised measurement below the threshold drops the case to a lesser offense.

What Follows a Conviction

The prison sentence is not the end of the consequences. A Class C drug felony carries collateral effects that outlast the sentence itself.

Immigration

For non-citizens, a controlled substance conviction is one of the most dangerous outcomes in the criminal system. Federal law makes any person convicted of violating a state or federal controlled substance law deportable, with a single narrow exception for one offense involving thirty grams or less of marijuana for personal use.¹⁰ A 220.09 conviction does not fit that exception and can trigger removal regardless of how long the person has lived in the United States.

Professional Licensing

New York’s Office of the Professions treats felony drug convictions as grounds for professional misconduct proceedings for doctors, nurses, dentists, pharmacists, engineers, and other licensed fields. The Board of Regents has final authority in disciplinary matters and can revoke, suspend, or place conditions on a license. A conviction does not automatically strip a license, but it opens a review that frequently ends in surrender or revocation.

Sealing the Conviction Later

Under CPL 160.59, a person with up to two eligible convictions (no more than one felony) can apply to have a conviction sealed. A 220.09 conviction qualifies because it is not a violent felony, sex offense, or Class A felony.¹¹ The waiting period is ten years from sentencing, or ten years from release if the person was imprisoned, with incarceration time excluded from the count. Sealing removes the conviction from public view but does not erase it.

1
New York State Senate. New York Penal Law 220.09 – Criminal Possession of a Controlled Substance in the Fourth Degree
2
New York State Senate. New York Penal Law 220.16 – Criminal Possession of a Controlled Substance in the Third Degree
3
New York State Senate. New York Penal Law 70.70 – Sentence of Imprisonment for Felony Drug Offender Other Than a Class A Felony
4
New York State Senate. New York Penal Law 65.00 – Sentence of Probation
5
New York State Senate. New York Penal Law 70.45 – Determinate Sentence; Post-Release Supervision
6
New York State Senate. New York Penal Law 60.35 – Mandatory Surcharge, Sex Offender Registration Fee, DNA Databank Fee, Supplemental Sex Offender Victim Fee and Crime Victim Assistance Fee
7
New York State Senate. New York Criminal Procedure Law 216.05 – Judicial Diversion Program
8
Department of Corrections and Community Supervision. Willard and Shock
9
New York State Senate. New York Penal Law 220.25 – Criminal Possession of a Controlled Substance; Presumption
10
Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
11
New York State Senate. New York Criminal Procedure Law 160.59 – Sealing of Certain Convictions