Defense For Criminal Sale Of A Controlled Substance In The Second Degree
Penal Law § 220.41 Criminal Sale of a Controlled Substance in the Second Degree is a very serious felony in New York. New York has a reputation for tough prosecution and enforcement of drug crimes and the District Attorney’s Offices are very aggressive in the way they investigate and prosecute individuals charged with these crimes.
If you have been charged with violating Penal Law § 220.41 Criminal Sale of a Controlled Substance in the Second Degree call the Kushner Law Group, PLLC, now so we can protect and guide you through this challenging situation.
New York Penal Law §220.41 Explained
It is important to note that the presumption underlying New York Penal Law §220.41 Criminal Sale of a Controlled Substance in the Second Degree is that large amounts of illegal drugs found on the defendant are not for personal use but for sale. When a defendant is charged with violating Penal Law § 220.41, the district attorney’s office will attempt to prove that the defendant knowingly and unlawfully possesses:
- One-half ounce or more of a narcotic drug
- One-half ounce or more of methamphetamine
- Five grams or more of a stimulant
- Five milligrams or more of a lysergic acid diethylamide
- 25 milligrams or more of a hallucinogen
- Five grams or more of a hallucinogenic substance
- 360 milligrams or more of methadone
It is also important to note that within the law, the meaning of “sell” in essence is an offer or 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 or 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 § 220.41 Violation
The government has many resources at its 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 conduct a search of a person, apartment, office or 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 then the evidence obtained may be excluded from the prosecution’s case against the defendant.
2. The defense can attempt to prove that the amount and or quantity of the drugs found does not meet the required minimum under the §220.41
Sentencing For NY Penal Law § 220.41 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 background and history
2. Criminal history or lack of one
3. The details of the crimes
For instance, Penal Law § 220.41 Criminal Sale of a Controlled Substance in the Second Degree is a Class A-II felony. It is possible that a defendant:
1. Who is convicted of § 220.41 may receive a minimum of 3 to 8 years in prison.
2. Who is convicted of § 220.41 may receive a maximum sentence of life imprisonment.
Mitigate Harsh Penalties. Contact Us Now.
The Kushner Law Group has had years of experience defending and protecting the rights of those charged with violating Penal Law § 220.41 Criminal Sale of a Controlled Substance in the Second Degree. We are a highly respected team that meticulously prepares each case for the most favorable result possible. We can help you. Call us now for a free consultation at 718-838-9341 or send us an email.