Creates the presumption of intent to sell when a person is in possession of forty or more individual packages containing heroin with an aggregate weight of 4.0 grams.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5475
SPONSOR: Smith TITLE OF BILL:
An act to amend the penal law, in relation to presumption of intent to
sell
PURPOSE OR GENERAL IDEA OF BILL:
Provides that possession of 40 or more individUal packages of heroin or
a heroin mixture is presumptive evidence of a person's intent to sell
it, thereby increasing the severity of the crime.
SUMMARY OF PROVISIONS:
Section 1: Adds a new section 220.26 to Penal Law to provide that for
the purposes of a prosecution for the class B felony crime of Criminal
Possession of a Controlled Substance in the Third Degree, where a person
knowingly and unlawfully possesses a narcotic drug with intent to sell
it (S 220.16 (1),), that possessing 40 or more individual packages of
heroin having an aggregate weight of 4.0 grams or more, is presumptive
evidence of a person's intent to sell it.
Section 2: Effective date.
JUSTIFICATION:
The Assembly Minority Task Force on Heroin. Addiction & Community
Response held several forums throughout the State to gather information
in order to provide a strong legislative package to combat the heroin
epidemic that is plaguing New York State. Law enforcement, prosecutors
and judges testifying at the forums collectively agreed that "we cannot
arrest or incarcerate our way out of this problem," recognizing that a
multi-pronged approach is necessary to combat this problem. However,
they did make the distinction between persons committing crimes to
support their drug habit and the drug dealers who are gaming the system,
maintaining that current penalties are too weak to deter drug dealers
from selling heroin. Since current law criminalizes the sale/possession
of a controlled substance based on its weight, a person who is caught
possessing 40 or. more packages of heroin could be charged with Criminal
Possession of a Controlled Substance in the Fourth Degree. However, a
person caught possessing 40 or more packages of heroin is clearly not
possessing it solely for his or her own personal use.
This legislation would provide that possessing 40 or more packages of
heroin is presumptive evidence of that person's intent to sell it. This
would elevate the crime to Criminal Possession of a Controlled Substance
in the Third Degree, where a person knowingly and unlawfully possess a
narcotic drug with intent to sell it.
PRIOR LEGISLATIVE HISTORY:
2021-2022: A4735 - Held for consideration in Codes
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
5475
2023-2024 Regular Sessions
IN ASSEMBLY
March 10, 2023
___________
Introduced by M. of A. SMITH -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to presumption of intent to
sell
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 220.26 to
2 read as follows:
3 § 220.26 Presumption of intent to sell.
4 For the purposes of a prosecution of a charge under subdivision one of
5 section 220.16 of this article, the possession of forty or more individ-
6 ual packages containing one or more preparations, compounds, mixtures or
7 substances of the controlled substance defined under paragraph eleven of
8 subdivision (c) of schedule I of section thirty-three hundred six of the
9 public health law and said preparations, compounds, mixtures or
10 substances are of an aggregate weight of 4.0 grams or more, is presump-
11 tive evidence that such person possessed such controlled substance with
12 intent to sell it.
13 § 2. This act shall take effect on the ninetieth day after it shall
14 have become a law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01031-01-3
