Establishes the crime of operating as a drug trafficker and enacts legislation relating to weapon possession and controlled substance offenses; repealer

Sections 2 and 3 of the bill amend subdivision 1 of section 70.00 of the penal law to provide that a person convicted of the new crime of operating as a major drug trafficker (see bill section 19) shall not receive the benefit of the recently enacted sentence reductions for drug law convictions and shall instead be subject to an indeterminate sentence of 15 years to life.

Section 4 of the bill amends paragraphs (c) and (d) of subdivision 1 of section 70.02 of the Penal Law by adding new Penal Law section 220.90 provisions relating to criminal use of a weapon in a controlled substance or marihuana offense, or an attempt thereof, (see bill section 19) to the list of class D and E felonies defined as violent felony offenses.

Section 5 of the bill repeals paragraphs (b) and (c) of subdivision 2 of section 70.02 of the Penal Law and adds four new paragraphs (b), (c), (d) and (e) to add a reference to criminal use of a weapon in a controlled substance or marihuana offense or an attempt thereof which is added by section 19 of the bill.

Section 6 of the bill amends paragraphs (c) and (d) of subdivision 3 of section 70.02 of the Penal Law to provide that the determinate sentence to be imposed upon conviction of the class D violent felony offense of criminal use of a weapon in a controlled substance or marihuana offense defined in subdivision 2 of section 220.90, added by section 19 of the bill, must be at least three years and must not exceed seven years and the determinate sentence to be imposed upon conviction of an attempt to commit such a crime, a class E violent offense, must be at least two years and must not exceed four years.

Section 7 and 8 of the bill amend paragraphs (c) and (d) of section 70.04 to provide that the determinate sentence to be imposed on a second violent felony offender upon conviction of a class D violent felony offense of criminal use of a weapon in a controlled substance or marihuana offense, added by section 19 of the bill, must be seven years and the determinate sentence to be imposed upon conviction of an attempt to commit such a crime, a class E violent offense, must be four years.

Section 9 of the bill amends paragraphs (c) and (d) of subdivision 6 of section 70.06 of the Penal Law to provide that the determinate sentence to be imposed on a second felony offender upon conviction of criminal use of a weapon in a controlled substance or marihuana offense defined in subdivision 2 of section 220.90, added by section 19 of the bill, must be at least five years and must not exceed seven years and the determinate sentence to be imposed upon conviction of an attempt to commit such a crime, a class E violent offense must be three years.

Section 10 of the bill adds two new subdivisions, (2-h) and (2-i) to section 70.25 of the Penal Law to provide that the sentence imposed upon conviction of criminal use of a weapon in a controlled substance or marihuana offense, defined in subdivision 2 of section 220.90, or an attempt thereof, and the sentence imposed upon conviction of any offense defined in Penal Law article 220 or 221 of the Penal Law arising from the same criminal transaction must be ordered to run consecutively.

Section 11 of the bill adds a new paragraph 5 to section 70.71 of the penal law to provide that a person convicted of the new crime of operating as a major drug trafficker (see bill section 19) shall not receive the benefit of the recently enacted sentence reductions for drug law convictions and shall instead be subject to an indeterminate sentence of 15 years to life. However, the court may sentence a person convicted of this offense to a determinate sentence applicable to other class A drug offenders if:

a) the defendant was convicted of this crime by reason of either selling eight ounces or more of a narcotic drug or possessing one-half kilogram or more of a narcotic drug; and

b) the court, having regard to the nature and circumstances of the crime and the history and character of the defendant, is of the opinion that an indeterminate sentence would be unduly harsh.

Section 12 of the bill amends section 110.05 of the Penal Law to provide that an attempt to commit the new A-I felony of operating as a major drug trafficker, which is added by section 19 of the bill, is an A-I felony.

Section 13 of the bill adds seven new subdivisions to section 220.00 of the Penal Law to define the terms "supervisory position" and "controlled substance organization" to conform to new Penal Law sections 220.75,220.80 and 220.85 which are added by section 19 of the bill; to define the terms "machine gun", "firearm", "rifle" and "shotgun" used in new Penal Law section 220.90 which is also added by section 19 of the bill; and to amend the definition of school grounds and define the term "public park" used in amendments to Penal Law sections 220.34 and 220.44 which are added by sections 13 and 17 of the bill, respectively.

Section 14 of the bill amends subdivision 7 of section 220.34 of the Penal Law by adding conforming references to a public park in its provisions prohibiting the sale of a controlled substance upon school grounds and adds a new subdivision 10 to section 220.34 of the Penal Law to make it a class C felony for a person to sell a controlled substance with the aid of a minor and a new subdivision 11 to make it

a class C felony for a person to sell a controlled substance through a computer service.

Section 15 of the bill adds a new subdivision 10 to section 220.39 of the Penal Law to make it a class B felony for a person to sell a controlled substance in violation of subdivisions (1) through (6-a) of section 220.34 of the Penal Law with the aid of a minor and a new subdivision 11 to make it a class B felony for a person to sell a controlled substance in violation of subdivisions (1) through (6-a) of section 220.34 of the Penal Law through a computer service.

Section 16 of the bill adds a new subdivision 8 to section 220.41 of the Penal Law to make it a class A-II felony to sell a controlled substance in violation of Penal Law section 220.39, subdivisions 1 through 9, with the aid of a minor and a new subdivision 9 to make it a class A-II felony to sell a controlled substance in violation of Penal Law section 220.39, subdivisions 1 through 9, through a computer service.

Section 17 of the bill adds a new subdivision 3 to section 220.43 of the Penal Law to make it a class A-I felony to sell a controlled substance in violation of Penal Law section 220.41, subdivisions 1 through 7, with the aid of a minor and a new subdivision 4 to make it a class A-I felony to sell a controlled substance in violation of Penal Law section 220.41, subdivisions 1 through 7, through a computer service.

Section 18 of the bill amends section 220.44 of the Penal Law by adding conforming references to a public park in its provisions prohibiting the sale of controlled substances upon school grounds.

Section 19 of the bill adds four new sections 220.75,220.80,220.85 and 220.90 to the Penal Law which create the crimes of operating as a major drug trafficker and criminal use of a weapon in a controlled substance or marihuana offense:

Section 220.80 - Operating as a major drug trafficker.

Section 220.85 - Operating as a major drug trafficker; jurisdiction and venue.

Section 220.90 - Operating as a major drug trafficker; no defense.

Section 220.95 - Criminal use of a weapon in a controlled substance or marihuana offense.

Section 20 of the bill amends paragraph (a) of subdivision 1 of section 460.10 of the Penal Law to include within the definition of enterprise corruption the new Penal Law sections 220.75 and 220.90 which are added by section 19 of the bill.

Section 21 of the bill amends subdivision 7 of section 480.00 of the Penal Law to include within the definition of specified felony offenses relating to asset forfeiture the new Penal Law sections 220.75 and 220.90 which are added by section 19 of the bill.

Section 22 of the bill amends paragraph (c) of subdivision 8 of section 700.05 of the Criminal Procedure Law relating to eavesdropping and video surveillance warrants by expanding the list of offenses covered by that section to include sections 220.75 and 220.90 of the Penal Law which are added by section 19 of the bill.

Section 23 of the bill amends paragraph (i) of subdivision 1 of section 806 of the correction law to provide that a person convicted of the new crime of operating as a major drug trafficker (see bill section 19) shall not be eligible for presumptive release on parole. Section 24 of the bill amends paragraph (a) of subdivision 4-b of section 1310 of the Civil Practice Law and Rules to expand its list of specified offenses for civil asset forfeiture purposes to include references to the new sections 220.75 and 220.90 of the Penal Law which are added by section 19 of the bill.

Section 25 of the bill sets forth a severability clause. Section 26 sets forth an effective date of November 1 after the bill becomes law.

Existing law

Chapter 738 of the Laws of 2004 enacted significant reductions in the sentences imposed upon offenders convicted of crimes involving the sale and possession of controlled substances and marijuana. However, these newly enacted sentences fail to provide significant sanctions for those who cannot be said to be included in the group of low level addicted offenders intended to benefit from the sentence reductions. This bill will provide appropriate sentences for those who seek to

profit from the sale of drugs and those whose drug crimes endanger our children and communities.

Operating as a major drug trafficker

Major drug traffickers, known as "drug kingpins", are responsible for the important business decisions and strategies relative to their illegal drug trade and routinely conspire with others to manage, control or oversee the organization. Nevertheless, these kingpins routinely rely on their employees, known as "drug mules" to physically handle the day-to- day drug transactions. By arranging, but not making the actual sale, kingpins expose their employees to felony drug charges for possession or sale, but are able to effectively shield themselves from such charges. Even with overwhelming evidence of a kingpin's involvement in the management and control of a large drug organization, prosecutors often can only charge them with conspiracy, which at most would be a class B felony.

Recognizing this shortcoming in existing law, the bill creates the crime of operating as a major drug trafficker. This new offense will enhance law enforcement's ability to prosecute drug kingpins by providing meaningful criminal sanctions for those who conspire with others to manage, control or oversee illegal drug operations.

Use of children to sell drugs

Another disturbing strategy employed by drug sellers is the use of children to sell drugs. Well aware that children may be overlooked as possible suspects in a drug operation, and cognizant of the fact that children face considerably lighter sentences when convicted of drug crimes, the shrewdest and most cowardly of drug dealers recruit minors to peddle their poison. Increasingly, drug sellers are using minors to sell illegal and dangerous narcotics in schools, on the streets and in our communities.

Equally devastating is that this type of unconscionable exploitation is not adequately punished. Although existing law imposes an enhanced penalty for the sale of narcotic preparations to a person under the age of twenty-one and for the sale of controlled substance in or near school grounds, it provides no enhanced punishment for those who sell a controlled substance with the aid of a person less than 18 years old.

Public protection requires that those who jeopardize the safety and well-being of our children for their own financial gain be punished swiftly and severely. Thus, the bill increases by one felony level the crimes of criminal sale of a controlled substance in the second, third, fourth and fifth degrees when such sale includes the assistance of a person who is less than 18 years of age.

Sale of drugs over the internet

In addition, the rapid expansion of the Internet has provided drug dealers with a larger market for selling drugs, particularly to our youth who have grown up in a digital world. The intricacies of the Internet provide an effective tool in avoiding detection. Recognizing the potential dangers of using the Internet to sell drugs, the bill increases by one felony level the crimes of criminal sale of a controlled substance in the second, third, fourth and fifth degrees when such sale is accomplished through the use of a computer service.

Sale of drugs in public parks

Currently the Penal Law defines "school grounds" and proscribes the sale of any controlled substance upon such grounds as a class C felony or a class B felony, based on the specified quantities of a controlled substance sold. These measures were enacted to afford a degree of protection to young New Yorkers from exposure to drugs and to more severely punish those who would traffic in controlled substances near our schools. No provision of law, however, treats the sale of a controlled substance in a public park in any manner different from a drug sale that occurs elsewhere.

The bill establishes a definition of a "public park" which closely parallels that of "school grounds" and adds this new term to existing provisions which penalize sales of controlled substances on school grounds and also penalizes sales of controlled substance on a school bus. Thus, the bill treats drug transactions in a park on the same basis as such trafficking upon school grounds. Our parks, and especially our younger citizens who enjoy them, should be free of drug peddlers and those who would sell controlled substances in these areas deserve the imposition of increased criminal sanctions.

Guns and drugs

The intrinsic link between gun violence and drugs cannot be overlooked, we must recognize that when mixed together, drugs and guns are a deadly combination. Individuals who possess or sell controlled substances and possess a weapon, must receive a sentence reflecting the danger to society that they represent. The creation of new violent felony offenses which prohibit the sale and possession of a controlled substance along with possession of a firearm, rifle or shotgun sends the message that such activity will not be tolerated.

Legislative history

2005 - S.3079 - 3rd reading 2006 - S.3079 - Codes S.159 - 2007-08 - Codes

Fiscal implications

None

Effective date

The first of November after the bill becomes law.