Intent to Sell Drugs in New York City


If you have been alleged to possess cocaine or heroin of any substantial quantity, or ecstasy or prescription narcotics with evidence of running a distribution scheme, you can face the felony drug charge of either or both Fifth and Third Degree Criminal Possession of a Controlled Substance (CPCS) in violation of sections 220.05 and 220.16 of the New York Penal Law. Commonly charged in their derivative forms of Possession with Intent to Sell (New York Penal Law § 220.16[1] and New York Penal Law § 220.05[5]), Fifth and Third Degree CPCS have, for over 40 years, served as the principal offenses by New York law enforcement to prosecute and ultimately incarcerate suspected New York City, Westchester and Long Island dealers of narcotics and controlled substances. Class D and B Felonies, respectively, Fifth or Third Degree CPCS each carry a minimum sentence of incarceration of a year in jail with a maximum term of up to two and one-half and nine years, assuming its for a first-time offense. Whether implied through weight or directly shown by evidence of prior sales, the existence or non-existence of the element of intent is a defining issue in many, if not all, Possession with Intent to Sell cases.

Prosecutors can prove the element of intent to sell for felony CPCS and marijuana possession crimes through both direct and indirect evidence. For direct evidence of intent, eyewitness testimony of contemporaneous or prior drug sales is highly relevant to show any later possession was made for the purpose of sale. People v. Casio, 186 AD2d 412 (1st Dep’t. 1992). This eyewitness testimony offered by prosecutors may be in the form of testimony of undercover officers or cooperating witnesses who may or may not have bought drugs on a prior occasion. As an aside, if there is a controlled buy in the case, it is also likely for prosecutors to charge the felony offense of Third Degree Criminal Sale of a Controlled Substance (CSCS) in violation of New York Penal Law § 220.39. Of course, direct evidence of intent is not limited to the direct testimony of cooperating witnesses or an arresting officer. You can provide that evidence as well through a prior statement – written or oral – made to law enforcement at the precinct after arrest.

As previously alluded to, the state does not necessarily need direct evidence of prior sales to secure a conviction for these crimes. The intent to sell element can also be proven by inference. Best characterized as a rebuttable presumption, an inference of sale can arise whenever prosecutors can show that a substantial quantity of drugs was found in your possession. While there is no bright-line rule on what amount of drugs an individual needs to possess for it to rise to the level of a substantial quantity, it must be an amount more indicative of sale than personal use. Of course, there is no requirement that prosecutors show, let alone prove, any specific weight at all for either of these offenses. Possession of sales paraphernalia – such as cash and scales – and drug “residue” is more than sufficient.

Controlled Substance cases are a specialty of New York prosecutors so it makes sense, if ever you find yourself facing these types of charges, to hire criminal defense lawyers similarly specialized in defending them. At the Law Offices of Jeffrey Lichtman, our top New York drug possession attorneys have decades of cumulative experience representing clients on felony drug charges and know how best to defend these cases. Whether through negotiation or aggressive cross-examination at trial, we pride ourselves on securing results no one else can, especially in the strongest of state drug cases. Contact one of our experience criminal defense attorneys today at (212) 581-1001 to learn more how we can help dismiss or reduce the felony drug charges against you.

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