PL 220.06 · Article 220
Criminal Possession of a Controlled Substance in the Fifth Degree
This offense has several alternative routes: possession of a controlled substance with intent to sell, possession meeting specified drug-and-weight thresholds, or possession of ketamine with a qualifying prior conviction. Each route requires knowing and unlawful possession, but intent to sell and a prior conviction are required only for the alternatives that expressly include them.
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Text us immediately · (845) 290-2492Definition under New York law
PL 220.06 · Original statutory wording; excerpts must be read together with the full section.
§ 220.06 Criminal possession of a controlled substance in the fifth
degree.
A person is guilty of criminal possession of a controlled substance in
the fifth degree when he knowingly and unlawfully possesses:
1. a controlled substance with intent to sell it; or
2. one or more preparations, compounds, mixtures or substances
containing a narcotic preparation and said preparations, compounds,
mixtures or substances are of an aggregate weight of one-half ounce or
more; or
3. phencyclidine and said phencyclidine weighs fifty milligrams or
more; or
5. cocaine and said cocaine weighs five hundred milligrams or more.
6. ketamine and said ketamine weighs more than one thousand
milligrams; or
7. ketamine and has previously been convicted of possession or the
attempt to commit possession of ketamine in any amount; or
8. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of twenty-eight grams or more.
Criminal possession of a controlled substance in the fifth degree is a
class D felony.Read the full section at the New York State SenateIn everyday language
This offense has several alternative routes: possession of a controlled substance with intent to sell, possession meeting specified drug-and-weight thresholds, or possession of ketamine with a qualifying prior conviction. Each route requires knowing and unlawful possession, but intent to sell and a prior conviction are required only for the alternatives that expressly include them.
At a criminal trial, the prosecutor must prove every element of the charged subsection and that you committed the offense beyond a reasonable doubt. An accusation is not proof of guilt. Where the statute provides alternatives, the prosecutor need not prove every alternative; the charged theory matters. Affirmative defenses may have different proof rules.
CPL § 70.20What the prosecutor must prove
- The prosecution must prove beyond a reasonable doubt that the person accused knowingly and unlawfully possessed the specified substance and met at least one of the following alternatives. These are alternatives, not cumulative requirements.
- Subdivision 1: A controlled substance, with intent to sell it; no minimum weight is specified.
- Subdivision 2: One or more preparations, compounds, mixtures, or substances containing a narcotic preparation, with a combined weight of at least one-half ounce.
- Subdivision 3: Phencyclidine weighing at least 50 milligrams.
- Subdivision 5: Cocaine weighing at least 500 milligrams.
- Subdivision 6: Ketamine weighing more than 1,000 milligrams; exactly 1,000 milligrams does not meet this alternative.
- Subdivision 7: Ketamine, plus a previous conviction for possession or attempted possession of ketamine in any amount; this alternative specifies no minimum current weight.
- Subdivision 8: One or more preparations, compounds, mixtures, or substances containing gamma hydroxybutyric acid as defined in Public Health Law section 3306, schedule I(e)(4), with a combined weight of at least 28 grams.
- Intent to sell is required under subdivision 1, but not under the other listed alternatives; the prior-conviction requirement applies to subdivision 7.
Defenses that commonly apply
- What evidence establishes knowing and unlawful possession by the person accused?
- Do the substance identification and weight measurements satisfy the particular alternative alleged, including the distinction between combined mixture weight and the weight of the named drug?
- If the allegation relies on intent to sell or a prior ketamine conviction, what evidence establishes that intent or the qualifying conviction?
Penalties and collateral consequences
A Class D Felony carries a maximum sentence of up to 7 years and a fine of up to $5,000.
Weight and intent-to-sell allegations are the heart of this charge. A reduction to a possession violation can change a felony record into a much smaller one.
Common questions about your defense
Does the absence of intent to sell defeat a fifth-degree possession charge?
If the charge relies on subdivision 1, a lack of proof of intent to sell may support a defense because that alternative expressly requires it. Other alternatives instead require specified substances and weights, or ketamine possession with a qualifying prior conviction, so absence of sales intent alone does not resolve them. The prosecution must prove knowing and unlawful possession and every requirement of the applicable alternative beyond a reasonable doubt.
Why is starting a defense early imperative?
An early defense is imperative to protect your rights and preserve evidence that may disappear. Keep court papers, messages, footage, and witness information without deleting or altering anything. Counsel can review court dates and applicable deadlines, request evidence, and begin preparing your defense immediately.
How does an experienced lawyer help build the best possible defense?
Your lawyer checks the exact subsection, compares its requirements with the evidence, and listens to your account. Depending on the charge, counsel may investigate identification, intent, witness reliability, and possible problems with searches, statements, or testing. Working together on an early strategy is imperative to pursue the best possible outcome in your circumstances; no outcome is guaranteed.
Does an arrest or police report prove the charge?
No. A police report is part of the case, not a finding of guilt. Your lawyer can compare its claims with video, records, and witnesses and assess whether admissible evidence meets each applicable requirement.
Can the charge be dismissed or reduced?
That depends on the evidence, the charged subsection, and procedural rules. Challenging evidence, filing motions, negotiating a legally available resolution, or preparing for trial may be appropriate. No lawyer can promise dismissal, reduction, or acquittal.
Every case turns on its own facts. The information on this page is general, not legal advice.
Related charges
PL 220.03 · Class A Misdemeanor
PL 220.09 · Class C Felony
PL 220.16 · Class B Felony
PL 220.18 · Class A-II Felony
PL 220.21 · Class A-I Felony
PL 220.31 · Class D Felony
PL 220.34 · Class C Felony
PL 220.39 · Class B Felony
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