Criminal Sale in or Near School Grounds of a Controlled Substance: New York Penal Code § 220.44

The penalties for selling controlled substances are generally harsher than for possessing them; but New York law treats either of these crimes more severely if children are involved or are in some manner affected by the sale of drugs. NY Penal Code § 220.44 covers the crime of criminal sale in or near school property of a controlled substance and characterizes the offense as follows:

1. A person was in or near (within 1,000 feet) a nursery school, pre-kindergarten, kindergarten, child day care center, school, educational facility, school bus, or school vehicle and sold drugs while on, in or near the property; and
2. A person who sold drugs knew they were on, in or near a facility or asset that was a nursery school, pre-kindergarten, kindergarten, child day care center, school, educational facility, school bus, or school vehicle.

The properties referenced above include public or private buildings, structures, athletic playing fields, playgrounds, and land or real property associated with the school.

Suppose the police were on patrol one evening and were driving by a school playground that was on their beat. No children were on the playground at the time, but the officers noticed a man and a woman exchanging a small packet and cash by the swings. The man felt the weight of the packet and quickly placed it in his pocket. After counting the money, the woman stuffed the money in her purse. The two separated and began walking in opposite directions when the police headed them off and stopped them. Upon inspecting the packet in the man’s pocket, the officers suspected that the packet contained heroin. Even though there were no children on the playground at the time, because the man and woman were on school property, the woman could be charged with criminal sale in or near school grounds of a controlled substance.

Dispute the property was a school or educational facility. To invoke this law, the accused must have sold a controlled substance and be on, in or near a nursery school, pre-kindergarten, kindergarten, child day care center, school, educational facility, school bus, or school vehicle. Children do not need to be present during the sale transaction for the application of this code. However, if the defendant can provide a strong argument that either the subject property was not school property or that the transaction did not take place within 1,000 feet of school property, then the prosecuting attorney may be forced to reconsider the case.

No knowledge that the property was a school or educational facility. If the person accused can convince the court that they (1) had no knowledge that the subject property was a nursery school, pre-kindergarten, kindergarten, child day care center, school, educational facility, school bus, or school vehicle, and that it (2) was reasonable that the defendant would not have such knowledge, then this section of the law might be dismissed.

Other lines of defense. By examining every detail of the case, including the defendant’s recount, a strategically minded and experienced defense attorney can craft a viable defensive approach.

The criminal sale on, in or near school grounds of a controlled substance is considered an extremely serious offense, and the sentencing structure reflects that premise.

Imprisonment. A person convicted of criminal sale on, in or near school grounds of a controlled substance is subject to sentencing for a Class B felony. If there had been no prior felony conviction, then the minimum five year prison sentence would apply; however, if there had been a prior felony conviction, then the minimum ten year sentence would apply. The maximum prison sentence for the criminal sale on, in or near school grounds of a controlled substance is twenty-five years.

Monetary fine. In addition to the jail sentence, a person convicted of the criminal sale on, in or near school grounds of a controlled substance may be ordered to pay a fine of up to $30,000.

To reiterate, criminal sale on, in or near school grounds of a controlled substance is implicated when a person knowingly and unlawfully sells:

1. A controlled substance that is in violation of Code 220.34, subdivisions 1 through 6-a, while on school grounds or a school bus; or
2. A controlled substance that is in violation of Code 220.39, subdivisions 1 through 8, while on school grounds or a school bus; or
3. A controlled substance that is in violation of Code 220.34, subdivisions 1 through 6 with circumstances that evidence knowledge by the accused that they are selling a controlled substance on “child day care grounds or educational facility;” or
4. A controlled substance that is in violation of Code 220.39, subdivisions 1 through 8 with circumstances that evidence knowledge by the accused that they are selling a controlled substance on “child day care grounds or educational facility.”
5. With reference to the preceding items 3 and 4 of this code section, the phrase “child day care grounds or educational facility” is identified as (a) any public or private land, playground, building, structure, or athletic playing field that is within the property boundary line as defined in subdivision 1 of code section 390 of the social services law (this includes nurseries, pre-kindergartens or kindergartens); or (b) any “publicly accessible area” located within 1,000 feet of the property boundary line of “child day care grounds or educational facility” or any parked vehicle located within 1,000 feet of the property boundary line of “child day care grounds or educational facility.” For this section, the phrase “publicly accessible area” means streets, sidewalks, parking lots, playgrounds, parks, restaurants, and stores.
6. A conspicuously posted sign or notice that identifies the presence or nearness of a “child day care or educational facility” shall provide presumptive evidence that a person should have reasonable knowledge that they are on, in or near such property.

Criminal sale on, in or near school grounds of a controlled substance is a Class B felony. If you are accused of this crime or any controlled substance offense, you should immediately consult with an experienced and strategically-minded defense attorney.

Barry C. Weiss P.C. is a reputable and staunch law firm that defends individuals accused of the criminal sale on, in or near school grounds of a controlled substance. The Elliot Adler PC law firm has successfully defended clients who have been accused of felony and misdemeanor controlled substance and drug crimes in New York State. Moreover, the Elliot Adler PC law firm has effectively defended clients who have been charged with drug crimes, including the sale or possession of marijuana, crack, cocaine, heroin, methamphetamine, LSD, OxyContin, Vicodin, PCP, and other controlled substances and drug crimes.

We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.

For additional information, refer to the following sections of the New York Penal Code:

1. Endangering a child’s welfare: § 260.10
2. Criminal sale to a child of a controlled substance: § 220.48