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NY Penal Law § 220.06: Criminal Possession of a Controlled Substance in the Fifth Degree
Criminal possession of a controlled substance in the fifth degree, NY Penal Law § 220.06, is the first felony level of drug possession in New York. On Long Island it most often means possessing 500 milligrams or more of cocaine, about half a gram. It also covers possessing any controlled substance with intent to sell it, and set weights of narcotics, PCP, ketamine and GHB. It is a class D felony. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends drug cases in Nassau County and Suffolk County courts.
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NY Penal Law § 220.06 at a glance
| Criminal possession of a controlled substance in the fifth degree | |
|---|---|
| Statute | NY Penal Law § 220.06 |
| Charge level | Class D drug felony |
| Cocaine threshold | 500 milligrams or more |
| First-offense prison range | 1 to 2½ years, if prison is imposed |
| Probation | Allowed by statute for drug felonies |
What NY Penal Law § 220.06 says
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.
Source: New York State Senate, official text. Read the full section, including any later amendments, before relying on it.
The official text skips from subdivision 3 to subdivision 5; there is no subdivision 4 in the current law.
What the prosecutor has to prove
- You possessed the substance (on you, or within your control).
- You knew you possessed it and knew it was a controlled substance.
- The possession was unlawful (no valid prescription or other legal authority).
- The weight met the threshold for the subdivision charged, confirmed by a lab, or you intended to sell it (subdivision 1).
Penalties for fifth-degree drug possession
| Outcome | What it means |
|---|---|
| Prison (first offense) | If a prison term is imposed for a first felony drug offense, it is 1 to 2½ years, plus post-release supervision. |
| Probation | New York’s drug sentencing law specifically allows probation for class D drug felonies. |
| Judicial diversion | Eligible defendants with a substance use problem can apply for court-supervised treatment, which can lead to a reduced charge or dismissal. |
| Reduced outcome | Many cases are reduced to seventh-degree possession (PL 220.03), a misdemeanor, especially when the weight is close to the line. |
| Other consequences | Drug convictions carry serious immigration consequences and can affect housing, financial aid and licensing. |
Charged with felony drug possession?
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How fifth-degree drug possession charges show up on Long Island
In about two years of Nassau County and Suffolk County arraignment records, about 106 people were arraigned on PL 220.06, about 7 in 10 of them in Nassau County.
Almost 9 in 10 were subdivision 5: cocaine weighing 500 milligrams or more. Intent to sell (subdivision 1) made up most of the rest. The charge often starts as misdemeanor seventh-degree possession and is raised once the lab weighs the drugs, or lowered when the lab weight comes in under the line.
In Nassau County, arrests are arraigned at the Nassau County District Court, 99 Main Street, Hempstead, NY 11550, across the street from our office. Felony cases that are indicted move to Nassau County Court, 262 Old Country Road, Mineola, NY 11501. In Suffolk County, arraignments are held at the Suffolk County District Court, First District, 400 Carleton Avenue, Central Islip, NY 11722. Indicted felony cases go to Suffolk County Court, Arthur M. Cromarty Criminal Court Complex, 210 Center Drive, Riverhead, NY 11901.
An example
Police find several small bags of cocaine during a car search. The field weight, including packaging, is just over half a gram, so the arrest charge is PL 220.06(5). The defense asks for the lab report: the net weight of the drug alone matters, and if it comes in under 500 milligrams the felony cannot stand.
Defenses to a PL 220.06 charge
- Weight. The 500 milligram line for cocaine is measured on the drug itself, as tested by the lab. Packaging and estimates do not count.
- Unlawful search. Many drug cases are dismissed after the evidence is suppressed.
- Possession. Drugs found in a shared car or apartment are not automatically yours. Statutory presumptions can be challenged.
- Intent to sell. For subdivision 1, packaging, cash or a phone alone may not prove intent.
- Lab and chain of custody. Testing errors and gaps in handling can undermine the case.
Related offenses
- Criminal possession of a controlled substance in the seventh degree (PL 220.03), class A misdemeanor
- Felony drug possession and sale (PL 220.16, 220.39)
- Long Island drug possession defense
NY Penal Law § 220.06: frequently asked questions
How much cocaine makes possession a felony in New York?
Under Penal Law 220.06(5), possessing 500 milligrams or more of cocaine (about half a gram) is criminal possession of a controlled substance in the fifth degree, a class D felony. Less than that is usually the misdemeanor PL 220.03.
Can I get probation for fifth-degree possession?
Yes. New York law allows probation for class D drug felonies. A first-offense prison sentence, if imposed, is 1 to 2½ years.
What is judicial diversion?
Judicial diversion is court-supervised treatment for eligible defendants charged with certain drug felonies. Completing it can lead to a reduced charge or a dismissal.
Does the weight include the bag?
No. The charge depends on the weight of the drug itself, as determined by the lab, not the packaging.
How much does a lawyer cost for this charge?
Hochhauser Criminal & DWI Defense, PLLC charges a flat fee, quoted after your free consultation, so you know the cost up front.
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This is general information about New York law, not legal advice about your case. Laws change, and the right defense depends on the facts. Prior results do not guarantee a similar outcome.
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