Substance Abuse

Substance Abuse Criminal Defense | Drug Crimes Eastern District of New York Criminal Defense | Drug Crimes Southern District of New York Criminal Defense | Florida Drugs Criminal Defense | Long Island Drugs and Marijuana Criminal Defense

Have you been arrested for possession of marijuana, possession of a hypodermic needle, possession of a controlled substance? Although the underlying behavior may be criminal, substance abuse is considered a disorder and a disease. Not only may this be a potential civil rights violation (see below) but being caught by police with an illegal substance, whether it is marijuana, crack, cocaine, prescription pills or heroin, you should hire an attorney familiar with mental illness, substance abuse disorders and the law to advocate on your behalf. This especially makes the difference in sentencing and mitigation in not only federal sentencing guidelines but state crimes.

Attorney Cory Morris holds an advanced degree in Psychology and teaches both Undergraduate and Graduate level courses in Psychology and the Law and Psychology of Criminal Behavior at Adelphi University. Focusing his thesis on impulsivity, Mr. Morris is familiar with substance abuse disorders from narcotics addiction to alcoholism. Because of the mental disorder, some of these criminal defendants may not be able to control the behavior that the government has criminalized. Although people who are caught with drugs and alcohol are usually prime candidates for treatment, often times we find these individuals facing jail time for some of these offenses, including but not limited to:

Penal Law Section         Name of the Offense

  • 220.03                         Criminal possession of a controlled substance in the seventh degree.
  • 220.06                         Criminal possession of a controlled substance in the fifth degree.
  • 220.09                         Criminal possession of a controlled substance in the fourth degree.
  • 220.16                         Criminal possession of a controlled substance in the third degree.
  • 220.18                         Criminal possession of a controlled substance in the second degree.
  • 220.21                         Criminal possession of a controlled substance in the first degree.
  • 220.25                         Criminal possession of a controlled substance; presumption.
  • 220.28                         Use of a child to commit a controlled substance offense.
  • 220.31                         Criminal sale of a controlled substance in the fifth degree.
  • 220.34                         Criminal sale of a controlled substance in the fourth degree.
  • 220.39                         Criminal sale of a controlled substance in the third degree.
  • 220.41                         Criminal sale of a controlled substance in the second degree.
  • 220.43                         Criminal sale of a controlled substance in the first degree.
  • 220.44                         Criminal sale of a controlled substance in or near school grounds.
  • 220.45                         Criminally possessing a hypodermic instrument.
  • 220.46                         Criminal injection of a narcotic drug.
  • 220.48                         Criminal sale of a controlled substance to a child.
  • 220.50                         Criminally using drug paraphernalia in the second degree.
  • 220.55                         Criminally using drug paraphernalia in the first degree.
  • 220.60                         Criminal possession of precursors of controlled substances.
  • 220.65                         Criminal sale of a prescription for a controlled substance or of a controlled substance by a practitioner or pharmacist.
  • 220.70                         Criminal possession of methamphetamine manufacturing material in second degree.
  • 220.71                         Criminal possession of methamphetamine manufacturing material in first degree.
  • 220.72                         Criminal possession of precursors of methamphetamine.
  • 220.73                         Unlawful manufacture of methamphetamine in the third degree.
  • 220.74                         Unlawful manufacture of methamphetamine in the second degree.
  • 220.75                         Unlawful manufacture of methamphetamine in the first degree.
  • 220.76                         Unlawful disposal of methamphetamine laboratory material.
  • 220.77                         Operating as a major trafficker.
  • 220.78                         Witness or victim of drug or alcohol overdose

In regards to the federal system (original source/available at: http://www.dea.gov/druginfo/ftp3.shtml):

 

Federal Trafficking Penalties for Schedules I, II, III, IV, and V (except Marijuana)

Schedule Substance/Quantity Penalty Substance/Quantity Penalty
II Cocaine
500-4999 grams mixture
First Offense:Not less than 5 yrs. and not more than 40 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $5 million if an individual, $25 million if not an individual.

Second Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, life imprisonment.  Fine of not more than $8 million if an individual, $50 million if not an individual.

Cocaine
5 kilograms or more mixture
First Offense:Not less than 10 yrs. and not more than life.  If death or serious bodily injury, not less than 20 yrs. or more than life.  Fine of not more than $10 million if an individual, $50 million if not an individual.

Second Offense: Not less than 20 yrs, and not more than life.  If death or serious bodily injury, life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.

2 or More Prior Offenses: Life imprisonment.  Fine of not more than $20 million if an individual, $75 million if not an individual.

II Cocaine Base
28-279 grams mixture
Cocaine Base
280 grams or more mixture
II Fentanyl
40-399 grams mixture
Fentanyl
400 grams or more mixture
I Fentanyl Analogue
10-99 grams mixture
Fentanyl Analogue
100 grams or more mixture
I Heroin
100-999 grams mixture
Heroin
1 kilogram or more mixture
I LSD
1-9 grams mixture
LSD
10 grams or more mixture
II Methamphetamine
5-49 grams pure or
50-499 grams mixture
Methamphetamine
50 grams or more pure
or 500 grams or more mixture
II PCP
10-99 grams pure or
100-999 grams mixture
PCP
100 grams or more pure
or 1 kilogram or more mixture
Substance/Quantity Penalty
Any Amount Of Other Schedule I & II Substances First Offense: Not more than 20 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than Life.  Fine $1 million if an individual, $5 million if not an individual.

Second Offense: Not more than 30 yrs.  If death or serious bodily injury, life imprisonment.  Fine $2 million if an individual, $10 million if not an individual.

Any Drug Product Containing Gamma Hydroxybutyric Acid
Flunitrazepam (Schedule IV)
1 Gram or less
Any Amount Of Other Schedule III Drugs First Offense: Not more than 10 yrs.  If death or serious bodily injury, not more that 15 yrs.  Fine not more than $500,000 if an individual, $2.5 million if not an individual.

Second Offense: Not more than 20 yrs.  If death or serious injury, not more than 30 yrs.  Fine not more than $1 million if an individual, $5 million if not an individual.

Any Amount Of All Other Schedule IV Drugs (other than one gram or more of Flunitrazepam) First Offense: Not more than 5 yrs.  Fine not more than $250,000 if an individual, $1 million if not an individual.

Second Offense: Not more than 10 yrs.  Fine not more than $500,000 if an individual, $2 million if other than an individual.

Any Amount Of All Schedule V Drugs First Offense: Not more than 1 yr.  Fine not more than $100,000 if an individual, $250,000 if not an individual.

Second Offense: Not more than 4 yrs.  Fine not more than $200,000 if an individual, $500,000 if not an individual.

Federal Trafficking Penalties for Marijuana, Hashish and Hashish Oil, Schedule I Substances
Marijuana
1,000 kilograms or more marijuana mixture or 1,000 or more marijuana plants
First Offense: Not less than 10 yrs. or more than life. If death or serious bodily injury, not less than 20 yrs., or more than life. Fine not more than $10 million if an individual, $50 million if other than an individual.

Second Offense: Not less than 20 yrs. or more than life.  If death or serious bodily injury, life imprisonment.  Fine not more than $20 million if an individual, $75 million if other than an individual.

Marijuana
100 to 999 kilograms marijuana mixture or 100 to 999 marijuana  plants
First Offense: Not less than 5 yrs. or more than 40 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than life.  Fine not more than $5 million if an individual, $25 million if other than an individual.

Second Offense: Not less than 10 yrs. or more than life.  If death or serious bodily injury, life imprisonment.  Fine not more than $8 million if an individual, $50million if other than an individual.

Marijuana
50 to 99 kilograms marijuana mixture,
50 to 99 marijuana plants
First Offense: Not more than 20 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than life.  Fine $1 million if an individual, $5 million if other than an individual.

Second Offense: Not more than 30 yrs.  If death or serious bodily injury, life imprisonment. Fine $2 million if an individual, $10 million if other than an individual.

Hashish
More than 10 kilograms
Hashish Oil
More than 1 kilogram
Marijuana
less than 50 kilograms marijuana (but does not include 50 or more marijuana plants regardless of  weight)

1 to 49 marijuana plants

First Offense: Not more than 5 yrs.  Fine not more than $250,000, $1 million if other than an individual.

Second Offense: Not more than 10 yrs.  Fine $500,000 if an individual, $2 million if other than individual.

Hashish
10 kilograms or lessHashish Oil
1 kilogram or less

Substance Abuse is a Disorder and Should not be a Crime

A criminal defendant should not be punished for suffering from a medical disease. See Robinson v. California, 370 U.S. 660 (1962) (a statute providing for imprisonment of anyone addicted to drugs violated the Eighth Amendment since criminalizing a condition such as drug addiction is akin to criminalizing mental illness). In the noncriminal context, an employee’s previous alcohol or drug addiction qualifies as a “disability” under the Americans with Disabilities Act if the addiction created a record of impairment that substantially limited a major life activity. 42 U.S.C. §§ 12101 (a), 12102(2)(A, B), 12114(b); Buckley v. Consolidated Edison Co. of New York, Inc., 127 F.3d 270, 272‑73 (2nd Cir. 1997). The American Psychiatric Association, recognizing that addiction to alcohol or drugs is a form of mental illness, sets forth standards for making a diagnosis of “substance dependence,” which is “[a] maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of [seven specified behaviors] … occurring at any time in the same 12‑month period … “ American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)(“DSM‑IV”), at 181; see also id., at 182, 190, 195‑96.

Marijuana Offenses and Civil Rights violations

“From 1997 to 2006, the New York City Police Department arrested and jailed more than 353,000 people simply for possessing small amounts of marijuana.”[1] Of those arrested, blacks accounted for over half at 52%. Indeed, “[t]he marijuana possession arrests are in part a fruit of New York City’s aggressive stop and frisk campaign,”[2] has significant costs[3], and carries with it social stigma. Akin to Michelle Alexander’s position on stop and frisk,

“[f]or the people arrested, mostly young Blacks and Latinos, the 24 hours in police custody and jail is a humiliating, degrading, alienating experience. The arrests create permanent criminal justice records which limit employment and educational opportunities. The entire arrest, booking and court process socializes the young people from poor families and neighborhoods to the criminal justice system, teaches them how to handle themselves within it,”[4]

“Since 2010, New York City has averaged between 30,000 and 50,000 marijuana arrests each year. And during the period between 2002 and 2012, 87 percent of the people arrested for marijuana possession in the city were black or Latino, despite evidence suggesting that whites use marijuana at about the same rate as either group.”[5] Black men are subjected to higher incarceration rates throughout the country. In New York, out of 11,147 inmates serving life sentences, 6,167 of those prisoners were black (55.3%).[6] Of that number, 89 black youths were sentenced to life for a crime they committed while a juvenile.[7] Of those youths not sentenced to prison, “African American and Latino youth comprise 95% of the youth entering detention, while they comprise less than two-thirds of all youth in New York City.”[8]

The marijuana possession laws in New York are basically the same as possessing any other drugs. The severity of punishment depends on the amount a criminal defendant possesses. Under New York statutes, possessing any amount of marijuana less than 10 pounds (1 to 9.9 pounds) is classified as class D Non-Violent Felony. If it is more than 10 pounds then class C Non-Violent Felony. These are second degree and first degree criminal possession respectively. However, if someone possesses between 8 and 15.9 ounces then it is a third degree class E Felony.

If the possessor has something between 2 and 8 ounces then they are classified under fourth degree criminal possession class A Misdemeanor. Class B Misdemeanor is when they possess an amount between 25 gram and 2 ounces or possess or burn them in public (even the highway), regardless of the amount. How does this translate from stops and arrests to convictions?

From 1980 to 2008, of 509,917 incarcerations in New York, 183,059 were considered violent felonies, while 192,142 convictions were drug offenses and 277,526 convictions were considered non-violent.[9] “There are 70 state prisons in New York. It costs about $32,400 to maintain a prisoner in New York State prison for a year…The operating budget for the state prison [system] has increased from about $450 million in fiscal year 1982-83 to about $2.6 billion [as of 2006].”[10] “African Americans make up 50.4% of the prison population. They represent 15.9% of the State’s population.”[11]

New Yorkers fiscally pay for a system of disproportionate application of the law, a system of injustice, that deprives human beings of their most basic civil liberties and imbues a negative social conditioning on its victims. Some New Yorkers pay with more than just the money it costs to run the system; some pay with their dignity, respect, and freedom while others pay with their lives and the vicarious suffering of their families. ” Earlier this summer, New York became the 23rd state in the country to legalize medical marijuana. Moreover, the state decriminalized the possession of up to 25 grams of marijuana more than 30 years ago. Even so, New York, and especially New York City, remain plagued by an inordinate number of low-level marijuana arrests.”

Hire a Criminal Defense Attorney for Drug Related Arrests

To punish someone for a maladaptive personality, mental illness, and/or being addicted to drugs (See Robinson, 370 U.S. 660) is wrong. Justice is best served for a criminal defendant to obtain drug treatment services while incarcerated and continued counseling, treatment, and educational services once released or while under the supervision of the government. Hire an attorney with the knowledge, experience and education to help you see the best result for a drug arrest in Long Island or Manhattan…

Speak with The Law Offices of Cory H. Morris to learn more about your criminal defense options.

(sources)

[1] Harry G. Levine and Deborah Peterson Small, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City, 1997-2007, NYCLU, 4 (April, 2008), http://www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_Final.pdf.

[2] Id. at 6.

[3] Id (“From 1997 to 2006, arresting, jailing, and arraigning in criminal court an average of 35,000 people a year, mostly teenagers and young adults, cost New York City approximately 53 million to 88 million dollars a year.”).

[4] Id.

[5] http://www.huffingtonpost.com/2014/09/15/new-york-recreational-marijuana_n_5825086.html.

[6] Nellis and King, supra note 9, at p. 11.

[7] See id. at p. 21.

[8] Correctional Association of New York, Juvenile Justice Project (September, 2007), http://www.prisonpolicy.org/scans/detention_fact_2007.pdf (the costs of such detentions are staggering, “[t]he average annual detention cost for one youth in secure detention in [the fiscal year of 2007] was $201,115”).

[9] Drop the Rock, The Campaign to Repeal the Rockefeller Drug Laws, Trends in New York State Prison Commitments, Public Policy Project (February, 2009), http://www.prisonpolicy.org/scans/DTR_TRENDS_February_2009.pdf.

[10] The Correctional Association of New York, Basic Prison and Jail Fact Sheet (March 2006), http://www.prisonpolicy.org/scans/basic_prison_fact_2006.pdf.

[11] The Correctional Association of New York, Prisoner Profile (March 2006), http://www.prisonpolicy.org/scans/prisoner_profile_2006.pdf.