NY Penal Law § 220.39 Criminal Sale of a Controlled Substance in the Third Degree

Penal Law § 220.39 Criminal Sale of a Controlled Substance in the third Degree is a serious crime in New York and is categorized as a felony. New York has a reputation for swift prosecution and enforcement of drug crimes and New York government agencies are very aggressive in the way they investigate and prosecute individuals charged with these crimes. If you have been charged with violating Penal Law § 220.34 Criminal Sale of a Controlled Substance in the Third Degree, call the Kushner Law Group now at (718) 504-1440 so we can protect and guide you through the prosecutorial ordeal.

New York Penal Law §220.39 Explained

When a defendant is charged with violating Penal Law § 220.39 Criminal Sale of a Controlled Substance in the Third Degree, the District Attorney’s Office (DA) will attempt to prove that the defendant knowingly and unlawfully sold a controlled substance of which are:

1. any narcotic
2. a stimulant weighing 1 gram or more
3. lysergic acid diethylamide weighing 1 milligram or more
4. a hallucinogen weighing 25 milligrams or more
5. a hallucinogenic weighing 1 gram or more
6. methadone weighing 1/8 of an ounce or more
7. if you sell narcotics to someone under the age of 21
8. if you sell narcotics and you have previously been convicted of a drug offense

In addition, Penal Law § 220.39 Criminal Sale of a Controlled Substance in the Third Degree is charged to defendants who sell the above drugs to people who are under 21 years of age. A defendant can also be charged with this crime if the defendant sells a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and was previously convicted of a drug offense.

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 many resources at their disposal to prosecute criminal drug cases, however, there are some defenses by which a defendant may challenge the government’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 §220.39

Sentencing for NY Penal Law § 220.39 Violation

There are a number of factors a judge will take into consideration 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 § 220.39 Criminal Sale of a Controlled Substance in the Third Degree is a B felony. It is possible that a defendant:

1. Who is convicted of § 220.39 may receive a minimum of 5 years in prison if there is no prior felony convictions.
2. Who is convicted of § 220.39 may receive a minimum of 10 years in prison if he/ she has had a prior criminal conviction.
3. Who is convicted of §220.39 may have to pay a fine on top of the prison sentence of up to $30,000.

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 § 220.39 Criminal Sale of a Controlled Substance in the Third 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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