Legal Question in Criminal Law in New York

Is a prison term virtually guaranteed?

A friend is arrested earlier this year in New York City in possession of 150 glassine envelopes heroin, and charged with 220.16 FB (CRIM POSS CONTRL SUBST-3RD B Felony) . Case is resolved by him being placed on probation for 2 years.

Subsequently, while still on probation he is arrested in possession of heroin again, in the same jurisdiction, and hit with the same charge, 220.16 FB (CRIM POSS CONTRL SUBST-3RD B Felony) .

The question is: How does Article 70 - � 70.06 "Sentence of Imprisonment for Second Felony Offender" affect this case? As I read it, that article pretty much states that if you commit a second, non-violent felony within ten years of committing a previous one, then "the court must impose an indeterminate sentence of imprisonment." That seems fairly straightforward. The only question now regards the AMOUNT of prison time. The sub-sections and sub-paragraphs were too complicated for this layperson, but I was able to take away that jail time is more than likely for this individual. Additionally, state guidelines for non-violent predicate offenders are: Minimum of 4 1/2 - 9 years prison; and a Max of 12 1/2 - 25 years in prison

With the information I have provided here, is there any way this guy is NOT going to do at least SOME time? I read that there are some diversionary options, but I don't see too much evidence of them being offered to repeat felons (even if they claim to be addicts) as an option. But, even if it WERE an option (treatment instead of prison) how long would one of those treatment options be, and would they definitely be inpatient, at least for the 1st six months of recovery. But that's a REACH. I'm thinking Prison.

Thank you so much for answering my convoluted question. I think he needs to retain "real" counsel,take the best deal he can get, and get on with this... and fast.


Asked on 10/08/10, 9:30 pm

1 Answer from Attorneys
peter bark bark & karpf

Based upon your zip code, if I assume that this case is pending in NYC it is possible to avoid jail. If he has not been convicted it may be plea bargained to a misdemeanor where jail is not required or he can get a drug program. What was the outcome of his first case? It sounds like he was only arrested for a felony and not convicted if he only received two years probation. Felony probation in New York is five years.

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Answered on 10/17/10, 7:29 am


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