Marijuana Possession and Sale

The opinions of Americans regarding marijuana laws are changing. Many more people are beginning to believe that marijuana should not be illegal. Indeed, many states have allowed people to possess marijuana for medicinal purposes. Colorado and Washington have decided to legalize marijuana entirely. Despite this trend, marijuana remains illegal in most places, including New York. Not only is marijuana still illegal, but police officers are still aggressively arresting people for possessing marijuana and District Attorneys are still aggressively prosecuting these cases. Only an experienced New York City marijuana crime lawyer can help you if you find yourself under arrest for these accusations.

Below is a discussion regarding the somewhat complicated marijuana laws of New York. If you, or a loved one, is accused of possessing or selling marijuana, do not hesitate to contact John Buza today for a free consultation.

New York law separates illicit drugs into separate and distinct categories. The first true distinction is marijuana from the rest of the illegal drugs. This section only discusses marijuana.

When it comes to marijuana, the law in New York is complex. First off, it is worth mentioning that the New York legislature and its courts insist on spelling it as “Marihuana.” So don’t be alarmed if you see it spelled that way in a legal writing. No, it is not a typo. In any event, New York decided in the 1970's that it was going to treat marijuana more liberally than other drugs. It is because of this decision that marijuana law in New York is complex.

Here is an example of this complexity:

If a person possesses less than 25 grams of marijuana, then that possession is only a violation and not a crime. This means that as far as the legal system is concerned, sanctions for that possession are more similar to traffic violation sanctions, than sanctions for an actual crime. That means that if you are guilty of possessing less than 25 grams of marijuana, you did not commit a crime and you cannot go to jail (as long as you haven’t been previously convicted of this same violation). In fact, the harshest punishment that you can receive for possessing less than 25 grams of marijuana is a $100 fine.

Unless…

That very same marijuana was possessed in a public place and it was burning or it was open to public view. If that’s the case, you can go to jail for up to 90 days.

Confused? The basic point is that there is a weird loophole in the law that many people would like to fix. Among the people who would like to fix this loophole are the five District Attorneys of New York City. They have all gone on record to state that small amounts of marijuana should be decriminalized regardless of whether its possession was open to public view or not.

However, the law in its current state currently has this loophole and the government still routinely prosecutes people for breaking these laws.

If you possess more than 25 grams of marijuana, it no longer matters whether it is burning or open to public view anymore. Having this much marijuana is a crime. The specific amount of marijuana affects the crime that it is. The highest level of crime you can be charged with for possessing marijuana in New York is a Class C felony. For you to be guilty of that charge, you need to found in possession of ten pounds of marijuana.

When it comes to sale, if a person sells marijuana to another person, then that seller is guilty of a class A misdemeanor which is punishable by up to a year in jail. The buyer of the marijuana is simply guilty of possessing the marijuana he just purchased.

However, if a person is guilty of selling more than 25 grams of marijuana, that crime is punishable by a class E felony. The buyer would be guilty of possessing the amount of marijuana he just purchased.

Moreover, if a person is guilty of selling more than sixteen ounces of marijuana, then he is guilty of a class C felony. The buyer would be guilty of possessing the amount of marijuana he just purchased.

Below are New York's laws concerning marijuana, applicable sanctions, and what the government needs to prove to sustain a conviction.

  • Unlawful Possession of Marihuana

Unlawful Possession of Marihuana is codified in New York Penal Code section 221.05. Unlawful possession of marijuana is a violation and not a crime. This violation is only punishable by a fine of not more than $100. However, if the person has previously been convicted, within three year of this new conviction, of any offense either in Article 221 (marijuana section) or Article 220 (general drug section) of the New York Penal Code, then the violation is punishable by a fine of not more than $200. If the person has been previously convicted of two separate offenses of either Article 221 or 220 within three years of this new conviction, then the violation is punishable by either (i) a fine of not more than $250 or (ii) a term of imprisonment of not more than 15 days.

For the government to sustain a conviction for Unlawful Possession of Marihuana, it must prove the following two elements beyond a reasonable doubt. It must prove that: <

  1. the person possessed marihuana; and
  2. the person did so knowingly and unlawfully.

Although not a crime, a conviction for Unlawful Possession of Marihuana still carries with it a social stigma and may have various collateral consequences.In addition, a conviction stays on your "record' for a period of time.

  • Criminal Possession of Marihuana in the First Degree

Criminal Possession of Marihuana in the First Degree is codified in New York Penal Code section 221.30. It is a class C Felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually one year and the maximum is 5.5 years. A person can be sentenced to just probation if certain criteria is met. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1.5 years and the maximum is 8 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 3.5 years and the maximum period is 9 years. In all circumstances, the person is forced to be on parole between 1.5 to 3 years.

For the government to sustain a conviction for Criminal Possession of Marihuana in the First Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person possessed one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully;
  3. the substance, in the aggregate, weighed 10 pounds or more.
  • Criminal Sale of Marihuana in the First Degree

Criminal Sale of Marihuana in the First Degree is codified in New York Penal Code section 221.55. It is a class C Felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually one year and the maximum is 5.5 years. A person can be sentenced to just probation if certain criteria is met. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1.5 years and the maximum is 8 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 3.5 years and the maximum period is 9 years. In all circumstances, the person is forced to be on parole between 1.5 to 3 years.

For the government to sustain a conviction for Criminal Sale of Marihuana in the First Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person sold one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully;
  3. the substance, in the aggregate, weighed 16 ounces or more.
  • Criminal Possession of Marihuana in the Second Degree

Criminal Possession of Marihuana in the Second Degree is codified in New York Penal Code section 220.25. It is a class D Felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually 1 year and the maximum is 2.5 years. A person can be sentenced to just probation if certain criteria is met. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1.5 years and the maximum is 4 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2.5 years and the maximum period is 4.5 years. In all circumstances, the person is forced to be on parole between 1 and 2 years.

For the government to sustain a conviction for Criminal Possession of Marihuana in the Second Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person possessed one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully; and
  3. the substance weighed, in the aggregate, more than 16 ounces.
  • Criminal Sale of Marihuana in the Second Degree

Criminal Sale of Marihuana in the Second Degree is codified in New York Penal Code section 220.50. It is a class D Felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually 1 year and the maximum is 2.5 years. A person can be sentenced to just probation if certain criteria is met. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1.5 years and the maximum is 4 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2.5 years and the maximum period is 4.5 years. In all circumstances, the person is forced to be on parole between 1 and 2 years.

For the government to sustain a conviction for Criminal Sale of Marihuana in the Second Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person sold one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully; and
  3. either (i) the substance, in the aggregate, weighed 4 ounces or more; or (ii) the person sold the substance containing marihuana to a person less than 18 years old .

  • Criminal Possession of Marihuana in the Third Degree

Criminal Possession of Marihuana in the Third Degree is codified in New York Penal Code section 220.20. It is a class E Felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually 1 year and the maximum is 1.5 years. A person can also be sentenced to probation. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1.5 years and the maximum is 2 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2 years and the maximum period is 2.5 years. In all circumstances, the person is forced to be on parole for up to 2 years.

For the government to sustain a conviction for Criminal Possession of Marihuana in the Third Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person possessed one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully; and
  3. the substance, in the aggregate, weighed 8 ounces or more.

  • Criminal Sale of Marihuana in the Third Degree

Criminal Sale of Marihuana in the Third Degree is codified in New York Penal Code section 220.45. It is a class E Felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually 1 year and the maximum is 1.5 years. A person can also be sentenced to probation. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1.5 years and the maximum is 2 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2 years and the maximum period is 2.5 years. In all circumstances, the person is forced to be on parole for up to 2 years.

For the government to sustain a conviction for Criminal Sale of Marihuana in the Third Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person sold one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully; and
  3. the substance, in the aggregate, weighed 25 grams or more.
  • Criminal Possession of Marihuana in the Fourth Degree

Criminal Possession of Marihuana in the Fourth Degree is codified in New York Penal Code section 220.15. It is a class A misdemeanor. If a person is convicted of a class A misdemeanor, he can be sentenced to up to 1 year in jail. There is no mandatory minimum sentence.

For the government to sustain a conviction for Criminal Possession of Marihuana in the Fourth Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person possessed marihuana;
  2. the person did so knowingly and unlawfully; and
  3. the substance, in the aggregate, weighed more than two ounces.
  • Criminal Sale of Marihuana in the Fourth Degree

Criminal Sale of Marihuana in the Fourth Degree is codified in New York Penal Code section 220.40. It is a class A misdemeanor. If a person is convicted of a class A misdemeanor, he can be sentenced to up to 1 year in jail. There is no mandatory minimum sentence.

For the government to sustain a conviction for Criminal Sale of Marihuana in the Fourth Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person sold marihuana;
  2. the person did so knowingly and unlawfully; and
  3. that the marihuana was not contained in one or more preparations, compounds, mixtures or substances of an aggregate weight of two grams or less, or was not contained in one cigarette, sold without consideration.
  • Criminal Possession of Marihuana in the Fifth Degree

Criminal Possession of Marihuana in the Fifth Degree is codified in New York Penal Code section 221.10. It is a class B misdemeanor. If a person is convicted of a class A misdemeanor, he can be sentenced to up to 90 days in jail. There is no mandatory minimum sentence.

There are two subsections to for this crime.

221.10(1)
For the government to sustain a conviction for Criminal Possession of Marihuana in the Fifth Degree(subsection 1), it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person possessed marihuana in a public place;
  2. the person did so knowingly and unlawfully; and
  3. the marihuana was burning or open to public view.

221.10(2)
For the government to sustain a conviction for Criminal Possession of Marihuana in the Fifth Degree(subsection 2), it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person possessed one or more preparations, compounds, mixtures or substances containing marihuana;
  2. the person did so knowingly and unlawfully; and
  3. the substance, in the aggregate, weighed more than 25 grams.
  • Criminal Sale of Marihuana in the First Degree

Criminal Sale of Marihuana in the Fifth Degree is codified in New York Penal Code section 220.35. It is a class B misdemeanor. If a person is convicted of a class A misdemeanor, he can be sentenced to up to 90 days in jail. There is no mandatory minimum sentence.

For the government to sustain a conviction for Criminal Sale of Marihuana in the Fifth Degree, it needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. that the person sold marihuana without consideration (the person gave marihuana to someone else without getting anything in return);
  2. the person did so knowingly and unlawfully; and
  3. that the marihuana was contained in one or more preparations, compounds, mixtures or substances of an aggregate weight of two grams or less, or was contained in one cigarette.

Criminal Sale or Possession of Marihuana in any degree is serious and a conviction may carry stiff penalties. John Buza, as an experienced New York criminal defense lawyer and former Manhattan prosecutor, can help advise if you, or a loved one, is accused of this crime. Contact him today for a free consultation.