Second Degree Criminally Using Drug Paraphernalia

Like most New York drug crimes that do not involve the sale of a controlled substance or possession of significant “weight” or quantities, Criminally Using Drug Paraphernalia is a misdemeanor offense. Criminally Using Drug Paraphernalia in the Second Degree, pursuant to New York Penal Law 220.50, does not always (and routinely does not) involve a large scale drug factory scenario. Instead, NY PL 220.50 routinely involves the possession of scales, glassines or vials used in the packaging, sale and manufacturing of drugs. If you are convicted of Criminally Using Drug Paraphernalia not only will you have a permanent criminal record, but you could be incarcerated for as long as one year in jail. In the New York City area you could serve time on Rikers Island, the Westchester County Jail or the Rockland County Jail.

• Fifth Degree Criminal Possession of a Controlled Substance : NY PL 220.06
• Seventh Degree Criminal Possession of a Controlled Substance : NY PL 220.03
• Criminal Possession of Marihuana : NY PL 221.10

There are three theories or types of Second Degree Criminally Using Drug Paraphernalia crimes that you and your criminal lawyer will face if you are arrested for violating NY PL 220.50. Irrespective of the subsection you are charged with by the police in New York City or in a neighboring jurisdiction, you are guilty of Criminally Using Drug Paraphernalia in the Second Degree if you knowingly possess or sell (that is correct, “using” is the same thing as “possessing”):

1. Diluents, dilutants or adulterants including, but not limited to, quinine hydrochloride, mannitol, mannite, lacoste or dextrose, adapted for the dilution of narcotic drugs or stimulants under circumstances evincing an intent to use or evincing knowledge of unlawfully mixing, compounding or preparing any narcotic drug or stimulant; or
2. Gelatin capsules, glassine envelopes, vials, capsules or any other material suitable for the packaging of individual quantities of narcotic drugs or stimulants under circumstances evincing an intent to use or evincing knowledge that some person intents to use the same for the purpose of unlawfully manufacturing, packaging or dispensing a narcotic drug or stimulant; or
3. Scales and balances used or designed for the purpose of weighing or measuring controlled substances under circumstances evincing knowledge that some person intends to use the same for the purpose of unlawfully manufacturing, packaging or dispensing of any narcotic drug or stimulant.

What Constitutes “Drugs” in “Drug Paraphernalia”

It is worth noting that the mere possession of glassines or a scale whether in your car, home or backpack is not “per se” evidence of guilt. There are many reasons why you would legitimately have a scale or ziplock bags. This is not a strict liability crime. In fact, the statute specifically mentions throughout each subsection that the contraband in question must be a narcotic drug or stimulant. For better or worse (I suggest worse, of course), not all police officers or even prosecutors recognize or address this at the time of an arrest for Criminally Using Drug Paraphernalia in the Second Degree. To that end, a recent decision involved the recovery of a scale, fifty small ziplock bags and marijuana. Despite the District Attorney’s Office ‘s contention that the charge of New York Penal Law 220.50(2) should not be dismissed, the New York City Criminal Court Judge disagreed and removed the crime from the complaint. The court stated, among other things, that marihuana is not a narcotic or stimulant and, therefore, even if there was intent to sell or package marihuana, the statute as charged was inapplicable.

• Marijuana and Drug Paraphernalia: Must a Narcotic be Present?

Obviously, each case is distinct from the next and must be reviewed and examined in the context of the specific evidence of your arrest. Is this a case that could lead to the dismissal of the charges against you? Are there other legal decisions that your criminal attorney is aware of that may be used to your benefit? Whatever the allegations, don’t run the risk of being saddled with a conviction for NY PL 220.50. Take the time to speak with your criminal lawyer. Get the help you need. Protect your future now.

Call the New York Drug Defense Lawyers and Former Manhattan Prosecutors at (212) 312-7129 or contact us online today.