Criminal Possession of a Controlled Substance (CPCS)

New York (source)

NY Penal Law § 220.21 1st degree
A-I felony
Aggravated Felony (AF)? Maybe. If this is a first drug offense, it is NOT a ‘drug trafficking’ AF, unless record of conviction (ROC) establishes possession of more than 5 grams of crack or of any amount of flunitrazepam, in which case probably is ‘drug trafficking’ AF. If this is a subsequent drug offense, ROC establishes a controlled substance as defined in 21 USC 802 and the government establishes a prior drug conviction, might be ‘drug trafficking’ AF (see App. G, §
Crime Involving Moral Turpitude (CIMT)? Probably Not.
Other Grounds Would be ‘controlled substance offense’ if record of conviction establishes a controlled substance as defined in 21 USC 802.
Tips Tip for defense lawyers:
1. To avoid risk of ‘drug trafficking’ AF or ‘controlled substance offense’, if possible negotiate diversion without a guilty plea.
2. To avoid risk of ‘controlled substance offense’, if possible consider alternative offenses such as Hindering Prosecution (see above, PL 205.55-205.65); or possibly to decrease risk of ‘controlled substance offense’ consider alternative offenses such as Criminal Solicitation (see above, PL 100.00-100.13) or Criminal Facilitation (see above, PL 115.00-115.08).
3. If pleading to this offense cannot be avoided, if possible keep out of record of conviction identification of the controlled substance involved.

Tip for immigration lawyers:
1. Argue NOT ‘drug trafficking’ AF based on arguments that remain available after the Supreme Court

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