NY Penal Law § 220.34 Criminal Sale of a Controlled Substance in the Fourth Degree

New York has a reputation for swift prosecution and enforcement. This can be seen in the Rockefeller Drug Laws that were enacted in the 1970’s as measures to curb the growing drug problems of the times. However, the consequences of these laws created harsh penalties beyond what was deemed acceptable in other states. Since then, many aspects of the Rockefeller Drug Laws have been repealed, however, New York government agencies are nonetheless still very aggressive in the way they investigate and prosecute drug crimes. Penal Law § 220.34 Criminal Sale of a Controlled Substance in the Fourth Degree is one such example and is a felony in New York. If you or someone you know has been charged with this crime, Call the Kushner Law Group now for a free consultation. We will guide you through the process and protect your rights.

New York Penal Law §220.34 Explained

When a defendant is charged with violating Penal Law § 220.34 Criminal Sale of a Controlled Substance in the Fourth Degree, the New York District Attorney’s (DA) will attempt to prove that the defendant knowingly and unlawfully sold a controlled substance of cannabis, phencyclidine, methadone, a depressant or a narcotic preparation in specific quantities. In addition, Penal Law § 220.34 makes the sale of controlled substances in certain locations illegal regardless of the quantity of the drug. These locations are:

1. School Grounds
2. Education Facilities
3. School Bus
4. Child Day Care Center

Remember, for the most part NY Penal Law § 220.34 Criminal Sale of a Controlled Substance in the Fourth Degree is a quantity specific crime. Below is a list of the drugs and the prescribed quantities needed to violate the law. They are:

1. A preparation with narcotics; or
2. More than ten ounces of a depressant and/or a dangerous depressant; or
3. More than two pounds of a depressant; or
4. Concentrated cannabis as defined in paragraph (a) of subdivision four of NY Penal Code § 332.00 of the public health law; or
5. More than fifty milligrams of phencycidine; or
6. Methadone; or
7. Any amount of phencyclidine if the person has been convicted previously of an offence in this article or the attempt or conspiracy to commit any such offense; or
8. Four thousand milligrams or more of ketamine; or
9. Sale of a controlled substance as described in Penal Code § 220.31 on a school ground or a school bus; or
10. Sale of a controlled substance as described in Penal Code § 220.31 on a child day care or educational facility with knowledge by the defendant and conspicuous posting by the child day care and educational facility as to their existence; or
11. Twenty-eight grams or more of substances, mixtures, compounds, or preparations containing gamma hydroxybutyric acid as described in § 336.00 of the public health law.

To learn more detail regarding the above, please go to http://www.nycourts.gov/judges/cji/2-PenalLaw/220/art220hp.shtml

It is also important to note that within the law, 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.

Possible Defenses to a NY Penal Law § 220.34 Violation

The government has imposing 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. For example, a policeman sees an illegal drug sale in progress. 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 defense can attempt to prove that the amount and or quantity of the drugs found does not meet the required minimum under the §220.34

Sentencing for NY Penal Law § 220.34 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 back ground and history
2. Criminal history or lack of one
3. The details of the crimes

For instance, Penal Law § 220.34 Criminal Sale of a Controlled Substance in the Fourth Degree is a C felony. It is possible that a defendant:

1. Who is convicted of § 220.34 may receive the minimum of 3.5 to 7 years
2. Who is convicted of § 220.34 may receive the maximum of 15 years
3. Who is convicted of §220.34 may have to pay a fine on top of the prison sentence of up to $15,000.

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 § 220.34 Criminal Sale of a Controlled Substance in the Fourth Degree. To learn more about the Kushner Law Group, click here. Call us now for a free consultation at (718) 504-1440.

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