New York has had a long history of leading the nation in prosecuting drug related crimes. The Rockefeller Drug laws enacted in 1973 inserted statutes governing the possession and sale of “narcotic” drugs into the New York State Penal Law. When these laws were enacted, New York’s drug prosecution laws became one of the toughest in the country because they were the first to introduce mandatory prison sentences on the basis of drug quantity. Although many of the harshest aspects of these laws were eventually replaced, New York still has a reputation for swift prosecution and enforcement. Penal Law § 220.31 Criminal Sale of a Controlled Substance in the Fifth Degree is one such example and is a felony in New York.
New York Penal Law § 220.31 Explained
When a defendant is charged with violating Penal Law § 220.31 Criminal Sale of a Controlled Substance in the Fifth Degree, the government will attempt to prove that the defendant knowingly and unlawfully sold a controlled substance. It is important to note that the meaning of sell in essence is an offer / agreement to sell even if the actual delivery of the banned narcotic did not occur. Intent is important because to be found guilty, the defendant has to have had the intent and ability to sell at the time of making the offer / agreement.
Thus, “An intent is a conscious objective or purpose. Thus, a person acts with intent to sell when that person’s conscious objective or purpose is to sell.” See Penal Law § 220.00(1); People v. Samuels, 99 N.Y.2d 20 (2002). Furthermore, a person unlawfully sells a banned narcotic when that individual doesn’t have the legal right to sell that substance.
What The NY Prosecution Has To Prove
So the prosecution has to prove, from all the evidence presented in the defendants case that beyond a reasonable doubt, both of the following two essential elements occurred:
1. That on or about X date, in the county of X, the defendant, sold the illegal drug; and
2. That the defendant did so unlawfully and knowingly.
If the prosecution proves beyond a reasonable doubt both of these essential elements, then the defendant will be found guilty of the crime.
If the prosecution does not prove beyond a reasonable doubt either one or both of those elements, then the defendant will be found not guilty of this crime. In addition, there is no minimum weight of drugs required to be prosecuted for this felony.
Possible Defenses to a NY Penal Law § 220.31 Violation
The government has formidable resources at their disposal to prosecute criminal cases, however, there are some defenses by which a defendant may challenge the prosecution’s case. The defendant can argue:
1. Lack of Probable Cause: When the police conducts a search of a person, apartment, office or a car, the police are required to have probable cause to conduct the search. This means that the police must have reason to believe that the defendant committed a crime or violated a law to have probable cause. If the methods used by the police to conduct the search violated the defendant’s rights or if a condition of probable cause was not met than the evidence obtained may be excluded from the prosecution’s case against the defendant.
2. Demonstrate with supporting evidence that the defendant did not actually make a sale of the drugs; that this was “not an attempted or actual sale transaction.”
3. The defendant may also attempt to argue a lack of intent, knowledge, possession for personal use, entrapment, or infancy (persons less than 16 years old)
Sentencing for NY Penal Law § 220.31 Violation
There are a number of factors a judge will take into account when determining what applicable sentence will be applied to a defendant. The factors are:
1. The defendant’s personal history
2. Criminal history or lack of one
3. The details of the crimes
For instance, Penal Law § 220.31 Criminal Sale of a Controlled Substance in the Fifth Degree is a D felony. It is possible that a defendant:
1. Who is convicted of a First offence can get 1 to 2.5 years
2. Who is convicted with a non-violent predicate felony offense can receive a sentence of 1.5 to 4 years
3. Who is convicted with a violent predicate felony offense can receive a sentence of 2.5 to 4.5 years.
The Kushner Law Group has had years of experience defending and protecting the rights of our clients in both New York State and the Federal courts. We have won successful results on behalf of our clients and are here to help guide you through the prosecutorial process if you have been charged with violating Penal Law § 220.31 Criminal Sale of a Controlled Substance in the Fifth Degree. Call us now for a free consultation at (718) 504-1440.
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