The Second Circuit has found that NY defines narcotic in a way that is overbroad and includes substances that are not on the federally controlled substance schedules and therefore, under the categorical approach, are not controlled substance offenses.

U.S. v. Minter, No. 21-3102 (2d Cir. 2023)

The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA.

The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.”

NOTE: Reason to believe charges do not require a conviction. See reason to believe.