NYS PL 220: Possession, Sale, Sentencing, and Diversion

New York Penal Law Article 220 is the state’s controlled substances statute. It defines the crimes of possessing, selling, and manufacturing illegal drugs in New York, and it grades those crimes by the type and weight of the substance involved, running from a class A misdemeanor at the lowest level up to a class A-I felony for major trafficking.¹ A conviction can mean anything from a probation sentence with court-supervised treatment to a lengthy determinate prison term, depending on the charge, the quantity, and the defendant’s record.

What Counts as a Controlled Substance

Article 220 applies to any substance listed in Schedules I through V of Public Health Law Section 3306, the state’s drug scheduling statute.² Within that broad category, “narcotic drug” is a narrower term pulled from specific sub-schedules and does not include methadone. Other defined categories include narcotic preparations, hallucinogens, stimulants, and depressants, each tied back to a Public Health Law schedule. The weight thresholds in later sections of the statute depend on which category a given drug falls into, so the same amount of powder can trigger very different charges depending on what it is.

“Unlawfully” in Article 220 means in violation of Article 33 of the Public Health Law, which governs how licensed practitioners and pharmacies may lawfully distribute controlled substances. Possession pursuant to a valid prescription is not a crime under Article 220.

The word “sell” is defined broadly. It covers not just a sale for money but also exchanging, giving away, or otherwise disposing of a substance to another person, and even offering or agreeing to do so.² Handing a friend a pill at no charge can be charged as a sale.

Possession Charges

Possession offenses are graded in reverse: the lower the degree number, the more serious the charge. All possession offenses require the prosecution to prove the defendant knowingly and unlawfully possessed a controlled substance. Possession can be actual (holding the drug) or constructive (exercising dominion or control over it without physical custody).³

Seventh Degree: Any Amount

Criminal possession of a controlled substance in the seventh degree, under Section 220.03, is the entry-level charge and a class A misdemeanor. It requires only that the person knowingly and unlawfully possess any controlled substance, with no minimum quantity. Two exceptions are built in: residual amounts in or on a hypodermic needle do not count, and possession discovered because someone sought emergency help for an overdose is shielded by the Good Samaritan provision in Section 220.78.⁴

Fifth Through First Degree: Weight and Intent

Felony possession charges begin at the fifth degree. Section 220.06 covers quantities such as 500 milligrams or more of cocaine, half an ounce or more of a narcotic preparation, or 50 milligrams or more of phencyclidine. It also covers possession of any controlled substance with intent to sell, regardless of amount.⁵

Fourth-degree possession under Section 220.09 raises the thresholds further, picking up quantities like an eighth of an ounce or more of a narcotic drug, one gram or more of a stimulant, or one milligram or more of LSD. Third-degree possession under Section 220.16 covers half an ounce or more of a narcotic drug, and it also covers possession of any amount of a narcotic drug with intent to sell.⁵

At the top, second-degree possession under Section 220.18 requires four ounces or more of a narcotic drug, and first-degree possession under Section 220.21 requires eight ounces or more of a narcotic drug or 5,760 milligrams of methadone.⁵ Both are class A felonies.

Sale Charges

Sale offenses track a parallel structure, from the fifth degree up to the first. Because “sell” is defined so broadly, a sale charge does not require any money changing hands.

Criminal sale of a controlled substance in the fifth degree, under Section 220.31, is the baseline offense, a class D felony. It requires knowingly and unlawfully selling a controlled substance in any quantity.⁶

Third-degree sale under Section 220.39, a class B felony, is one of the most commonly charged sale offenses. It picks up the sale of any amount of a narcotic drug, one gram or more of a stimulant, one milligram or more of LSD, an eighth of an ounce or more of methamphetamine, or 250 milligrams or more of phencyclidine. It also covers selling any narcotic preparation to a person under 21.⁷

Second-degree sale under Section 220.41 is a class A-II felony and is triggered by half an ounce or more of a narcotic drug, five grams or more of a stimulant, or five milligrams or more of LSD, among other thresholds.⁸ First-degree sale under Section 220.43, a class A-I felony, requires two ounces or more of a narcotic drug or 2,880 milligrams or more of methadone.⁹

Major Trafficking

The most serious drug offense in New York is operating as a major trafficker under Section 220.77, a class A-I felony. A person can be convicted in three ways: by directing a controlled substance organization that generates $75,000 or more in sales proceeds over 12 months or less; by personally selling narcotic drugs worth $75,000 or more in proceeds within six months; or by possessing narcotic drugs with intent to sell totaling $75,000 or more in value within six months.¹⁰

Sales Near Schools and to Minors

Section 220.44 criminalizes the sale of a controlled substance on school grounds or a school bus. “School grounds” is defined to include not just school property but also any publicly accessible area within 1,000 feet of a school, including sidewalks, parks, and parked vehicles. The prosecution does not need to prove the defendant knew the sale occurred near a school.¹¹ Section 220.48 separately criminalizes the sale of a controlled substance to a child, and Section 220.28 covers using a child to commit a controlled substance offense.

Presumptions That Can Make You a Possessor

Section 220.25 contains two evidentiary presumptions that often decide close possession cases.

The automobile presumption says that the presence of a controlled substance in a car is presumptive evidence of knowing possession by every person in the vehicle at the time. It does not apply on a public bus, when the substance is concealed on the person of one occupant, or when a licensed operator-for-hire is lawfully driving.¹² The presumption is permissive: a jury may infer knowing possession from the drug’s presence, but is not required to.¹³

The room presumption applies when a narcotic drug, narcotic preparation, or phencyclidine is found in open view in a non-public room under circumstances suggesting the drug was being prepared for sale. Every person in close proximity is presumed to knowingly possess the substance.¹²

Sentencing

Drug felonies under Article 220 are sentenced under their own scheme. Most New York felonies carry indeterminate sentences (a minimum and maximum range), but Penal Law Section 70.00 excludes Article 220 felonies from that framework.¹⁴ Instead, Section 70.70 sets determinate sentences for drug felonies below class A: a fixed prison term in whole or half years, followed by a period of post-release supervision.

For a first-time felony drug offender, the ranges under Section 70.70 are:

Class B felony: 1 to 9 years (2 to 9 years for school-grounds or child-related sales).
Class C felony: 1 to 5.5 years.
Class D felony: 1 to 2.5 years.
Class E felony: 1 to 1.5 years.

The ranges go up for a second felony drug offender. If the prior felony was non-violent, the class B range rises to 2 to 12 years. If the prior felony was violent, it jumps to 6 to 15 years.¹⁵

Prison is not the only option. Judges retain discretion to sentence defendants to probation for class B through E drug felonies. For class D or E felonies, if a determinate prison term would be unduly harsh, the court may impose a definite jail sentence of one year or less instead.¹⁵

Judicial Diversion Instead of Prison

Defendants charged with class B, C, D, or E drug felonies under Article 220 may be eligible for judicial diversion under Criminal Procedure Law Article 216, which replaces incarceration with court-supervised substance use treatment.¹⁶

After arraignment, an eligible defendant can request a substance use evaluation. If the court finds, after a hearing, that the defendant’s substance use contributes to their criminal behavior and that treatment can effectively address it, the court may order diversion. The defendant usually enters a guilty plea before diversion takes effect, though exceptions exist when a plea would carry severe collateral consequences.¹⁷

Participants must comply with treatment, submit to periodic drug testing, and appear in court regularly. Violations can trigger graduated sanctions or termination from the program and sentencing on the original plea. Successful completion can let the defendant withdraw the guilty plea and have the indictment dismissed, or plead down to a lesser offense.¹⁷

Defendants are generally disqualified if they have a violent felony conviction within the prior 10 years or a class A drug felony conviction, though prosecutors can waive these exclusions.¹⁶

Overdose Good Samaritan Immunity

Section 220.78 provides limited immunity for people who call for help during a drug or alcohol overdose. A person who in good faith seeks health care for themselves or someone else experiencing an overdose or life-threatening medical emergency cannot be charged with possession of a controlled substance, cannabis, drug paraphernalia, or underage possession of alcohol if those substances were discovered as a result of seeking that care.¹⁸

The immunity has real limits. It does not shield sale offenses, though a separate affirmative defense is available for sale charges if the defendant proves good-faith medical help-seeking and has no prior class A-I, A-II, or B drug felony conviction. The immunity also does not apply to class A-I felony charges.¹⁸ The statute defines an overdose as an acute condition that a reasonable person with average knowledge of medicine would believe requires health care, including physical illness, coma, or death resulting from substance use.¹⁹

Cannabis Is No Longer Covered

Article 220 no longer applies to marijuana. The Marijuana Regulation and Taxation Act of 2021 removed cannabis from the state’s schedule of controlled substances and repealed the subdivisions within Sections 220.00, 220.06, 220.09, and 220.34 that had referenced marijuana. Lawful cannabis use and sales are now governed by Article 222.²⁰ If your situation involves cannabis, Article 220 is not the statute to look at.

1
New York State Senate. Penal Law Article 220
2
New York State Senate. PEN Section 220.00 – Controlled Substances; Definitions
3
NY Courts. Criminal Jury Instructions – PL 220.03
4
New York State Senate. PEN Section 220.03
5
NY Courts. Criminal Jury Instructions – Penal Law Article 220
6
New York State Senate. PEN Section 220.31
7
New York State Senate. PEN Section 220.39
8
New York State Senate. PEN Section 220.41
9
New York State Senate. PEN Section 220.43
10
New York State Senate. PEN Section 220.77
11
NY Courts. Criminal Jury Instructions – PL 220.44(2)
12
New York State Senate. PEN Section 220.25
13
NY Courts. Criminal Jury Instructions – Presumptive Possession (Automobile)
14
New York State Senate. PEN Section 70.00
15
New York State Senate. PEN Section 70.70
16
NY Courts. Suffolk Judicial Diversion Program
17
New York State Senate. CPL Section 216.05
18
New York State Senate. PEN Section 220.78
19
NY Courts. Criminal Jury Instructions – PL 220.78 Overdose
20
New York State Senate. Senate Bill S854 (2021)