Many people think that marijuana should be legal. A lot of other states are moving in that direction. Even so, possession of marijuana is still illegal in New York.
If you’re caught with up to twenty-give grams of marijuana, it’s a civil infraction ticket. You only risk jail time if you have more than twenty-five grams. From there, New York divides marijuana possession charges by degrees. The most serious charge is possession of marijuana in the first degree.
Penalties for possession of marijuana in the first degree
Criminal possession of marijuana in the first degree is a class C felony under N.Y. Pen. Law § 221.30. You can be charged with the offense if you’re found with more than ten pounds of marijuana. For a class C felony, you can spend up to 15 years in prison if you’re convicted. You also face a fine of up to $15,000.
Examples and other common charges
If you’re facing charges of possession of marijuana in the first degree, the police might also try to charge you with the sale of marijuana. If they believe that you have enough marijuana that you intend to sell it or even share it with someone else, you might find yourself charged with sale of marijuana in addition to possession.
If you’re charged with possession of marijuana in the first degree, it’s important to speak with a NYC criminal attorney about your available defenses. There might be ways for you to defend yourself that you hadn’t considered. These options can result in dismissal of your charges or reduced penalties.
When your attorney evaluates your case, they’re going to evaluate how the police found the marijuana. If they pulled you over while you were driving, your attorney is going to pour over the traffic stop to determine if it was legal. The police have to have a legal reason to stop your vehicle. If they don’t, your attorney can ask the court to dismiss the charges.
The same is true if the police searched your home. You must either give them permission to search your home or they need a search warrant. If they broke the law to find your marijuana, the court might dismiss the entire case.
Another common defense is that you weren’t actually in possession of the marijuana. The marijuana might have belonged to someone else. It might not have been in your control. It’s up to law enforcement to prove all of the elements of the offense against you in court. If they don’t, you could win your trial.
Drug treatment courts
If you’re charged with first degree possession of marijuana, you might be eligible to participate in a drug treatment court in exchange for a reduced sentence or dismissal of your charges. To get this kind of disposition, you can ask the court to evaluate if you have a substance abuse problem that contributed to your criminal charges.
If the court finds that you have a substance abuse problem, the court might offer that you can participate in a drug treatment program. The program includes a probationary term that involves substance abuse monitoring and treatment programs. If you successfully complete the program, you can receive a reduced sentence or dismissal the charges against you.
Possession of marijuana in the first degree is a serious offense in New York. If you’re facing this type of charge, we invite you to contact our offices. Your future is too important to risk.
New York Penal Code 221.25: Criminal possession of marijuana in the second degree
In New York, there’s no distinction between having marijuana plants and having processed marijuana that’s ready to smoke. What charge you face depends on the weight of the marijuana. Marijuana charges are divided by degrees. The most serious charge is first degree, and the least serious charge is a civil infraction.
Possession of marijuana charges are determined by weight
If you have more than ten pounds of marijuana, that’s possession in the first degree. If you have sixteen or more ounces of marijuana, it’s possession in the second degree. There are third, fourth and fifth degree possession charges for amounts of less than sixteen ounces. Finally, there is a civil ticket for possession of less than twenty-five grams of marijuana.
Possession of marijuana in the second degree is a violation of N.Y. Pen. Law § 221.25. It’s a class D felony. You can spend up to seven years in prison and pay a fine of up to $5,000 if you’re convicted.
Possession of marijuana and the sale of marijuana are two distinct and separate crimes in New York. If you have enough marijuana that law enforcement thinks it’s not only for your personal use, they might charge you with the sale of marijuana. Even if you give marijuana away, it’s classified as a sale under New York law. Having selling accessories with your marijuana like scales or plastic bags can also lead to an additional charge of selling marijuana.
The Compassionate Care Act
Recent legislation makes it legal for individuals to own small amounts of marijuana for medical use only. A medical professional must recommend marijuana to their patient. You must have a medical registration card before you possess. Even a prescribing physician must complete state training in order to legally recommend marijuana to patients.
Other available defenses
If you find yourself facing a marijuana charge in New York, there are a variety of defenses that might be available to you. In addition to the Compassionate Care Act, you might be able to defend yourself on the grounds that the stop or the search warrant was illegal. The police can’t just stop your vehicle or search your home for marijuana.
Instead, they have to have legal grounds to search. In the case of your home, they have to have a search warrant. If the police didn’t search your property or home in a lawful way, the result can be a complete dismissal of the charges against you.
You might also be able to defend yourself against the charges on the grounds that you didn’t actually have possession of the marijuana. Perhaps someone else put the marijuana on your person in hopes of avoiding their own charges. If you can show that you didn’t have dominion or control over the marijuana, it might be a valid defense to the charges.
You might also qualify to participate in a drug court program. If you have a substance abuse problem, New York has drug courts available to help offenders overcome these issues. If you successfully complete the drug court program, you can get a reduction or dismissal of the charges against you. Drug court programs usually involve substance abuse testing and treatment such as counseling.
Work with an experienced attorney
Marijuana laws continue to change in the State of New York. It’s important that you consult an NYC criminal lawyer if you’re facing marijuana charges. An attorney can help you navigate this complex area of law. They can help you prepare your best defense and achieve the best possible outcome in court.
New York Penal Code 221.20: Criminal possession of marijuana in the third degree
Unless you’re a registered user or caregiver under New York’s Compassionate Care Act, it’s illegal to possess marijuana in New York. In fact, the courts still take marijuana offenses seriously. Possession of marijuana can be a misdemeanor or a felony depending on how much marijuana the police find in your possession.
The degrees of marijuana possession
In New York, possession of marijuana can be a very serious offense. If you have ten pounds of marijuana or more, you face a class C felony. The most serious offense is possession of marijuana in the first degree. Second, third, fourth and fifth degree marijuana possession charges are progressively less serious for smaller amounts of marijuana.
Criminal possession of marijuana in the third degree involves possessing at least eight ounces of marijuana. If you have sixteen ounces of marijuana, you can face a charge of possession in the second degree. Possession in the third degree is a class E felony under N.Y. Pen. Law § 221.20. You can spend up to four years in prison if you’re convicted of the charge. You can also face a fine of up to $5,000 and spend significant time on probation.
You and your NYC criminal attorney should create a game plan that defends you against the charges in every way possible. One way to defend yourself is to argue that the state doesn’t have sufficient evidence that you possessed the marijuana. It’s up to the state to prove that you knew that you had power and control over the marijuana.
For example, four friends are on a camping trip. Law enforcement finds a bag of marijuana sitting near the camp fire. No one is sitting near the marijuana, and no one claims to know who the marijuana belongs to. In this case, the state’s case might fail because there’s no way for them to prove that you actually had the marijuana.
Your attorney can also explore possible defenses that relate to the state proving that the substances in your possession are actually marijuana. In addition, the state needs to prove that you knew you were in possession of the marijuana as opposed to accidentally carrying someone else’s things. Finally, if the state violated search and seizure laws when they gathered evidence against you, this can also be a defense to the charges.
Compassionate Care Act
There are limited circumstances where a person can legally possess marijuana in New York. This is the case where a person is a registered medical marijuana user or caregiver under New York’s Compassionate Care Act. The circumstances that make marijuana use legal under the Act are carefully controlled. A person must be a registered user or caregiver before they’re caught with marijuana. To receive a medical marijuana card, a person must have a qualifying medical condition and a certification from an authorized doctor that endorses their medical marijuana use.
Finally, New York courts use a drug court program to help non-violent drug offenders stop abusing substances. The theory behind the drug courts is that people need treatment to conquer drug use instead of only punishment from the court system. To take advantage of drug court, the person charged pleads guilty to the offense and enters the drug court program.
While in the drug court, participants obtain treatment for substance use and prove their sobriety with drug testing. Criminal possession of marijuana in the third degree is a serious offense, so your qualification to drug court is not automatic. If you successfully complete the program, your charges can be reduced or dismissed.
New York Penal Code 221.15: Criminal possession of marijuana in the fourth degree
In New York, possession of marijuana can be a very serious offense. At the highest level, possession of more than ten pounds of marijuana is punishable by up to fifteen years in prison. For small amounts, possession of marijuana is only punishable by paying a fine. The specific marijuana charge you face depends on the amount of marijuana that law enforcement finds. They determine the amount by weighing what they find.
Possession of marijuana in the fourth degree
Marijuana possession charges are divided into five degrees of criminal charges plus a non-criminal charge. First degree possession is for the largest amounts, and fifth degree possession is the lowest of the criminal marijuana charges. Possession of marijuana in the fourth degree occurs when you have more than two ounces of marijuana but less than eight ounces. Possession in the fourth degree is a class A misdemeanor under N.Y. Pen. Law § 221.15. A class A misdemeanor can carry up to one year in jail and up to a $1,000 fine.
Spodek Law Group is a team of NYC criminal lawyers with extensive experience defending marijuana charges in New York. A marijuana charge in New York is serious. However, there are options available to you to defend your charges completely or reduce them to a less serious offense.
You might consider participating in one of New York’s drug treatment courts. The justice system created drug courts in order to treat the problem of drug use instead of simply punishing it. If you have a substance abuse problem that contributes to your criminal use of marijuana, you might be eligible for this option.
Your participation includes a term of probation during which you participate in intensive drug treatment and monitoring. The goal is that you are able to find the resources that you need in order to stop using marijuana. If you’re successful in the treatment program, you can have your charges reduced or even dismissed completely.
Possession and control
Law enforcement has to prove the charges against you to the satisfaction of a jury. To do this, they have to prove that you are the person that actually had possession of the marijuana. Saying that the marijuana is away from your immediate person in a closet in your room isn’t going to help, because the marijuana is still under your control. This might be a great defense in cases where the marijuana is under a seat in a car and law enforcement can’t prove who put it there or who in the vehicle can exercise control over it.
Search and seizure
Even if you have marijuana, law enforcement still has to find it in a legal way. If they want to search your home, they need to get a search warrant. If you didn’t invite law enforcement to look in your home, and they didn’t get a search warrant, you might be able to completely defend your case on constitutional grounds. There are a few nuances and exceptions in search and seizure laws, so it’s important to work with a skilled attorney to evaluate your defenses.
Compassionate Care Act
Marijuana use is actually legal in a few situations in New York. This is because of New York’s Compassionate Care Act. The goal of the law is to allow people to use marijuana in certain conditions because of medical problems. To use medical marijuana you need to have a qualifying condition, and you must apply to be an official patient.
New York Penal Code 221.10: Criminal possession of marijuana in the fifth degree
Possession of small amounts of marijuana in New York is only punishable by a ticket. If law enforcement catches you with less than twenty-five grams of marijuana, all they can do is give you a fine. If you’re caught with more than twenty-five grams, possession of marijuana is a crime in New York. While other states have moved towards legalizing marijuana use for recreational purposes, marijuana remains illegal in New York.
Your charge depends on how much you have
The seriousness of your marijuana charge depends on how much marijuana law enforcement thinks you had in your possession. Criminal possession of marijuana in the fifth degree is the least serious of the criminal marijuana charges. First degree is the most serious, and that covers situations where a person has more than ten pounds in their possession. Fifth degree possession occurs when a person has more than twenty-five grams but less than two ounces of marijuana.
Criminal possession of marijuana in the fifth degree is a class B misdemeanor under N.Y. Pen. Law § 221.10. That means you can spend up to three months in jail for the offense. You can also pay a fine of up to $500. Penalties for possession of marijuana are greater for offenses involving a larger quantity of marijuana.
It doesn’t matter if you didn’t show the marijuana to anyone, if you didn’t smoke it or even if you kept it in a locked place where children can’t access it. All law enforcement needs to be able to prove is that you had the marijuana in your control. There’s also no distinction between plants that are growing and processed marijuana that’s ready to smoke. Law enforcement determines the charges by weighing the amount of marijuana in your possession.
If you’re charged with criminal possession of marijuana in the fifth degree, our team of NYC criminal attorneys can help you explore your available defenses. You might be able to defend your charges on the grounds that you are able to use marijuana legally under New York’s Compassionate Care Act. This law allows trained physicians to prescribe marijuana to patients for certain medical conditions. If you have a registered card for use and you use marijuana only under regulated conditions, your use can be legal.
In addition to the Compassionate Care Act, your attorney might be able to file pretrial motions to ask the court to dismiss your charges. This can be the case if law enforcement stopped or searched your vehicle illegally. Law enforcement needs to have a legal reason to stop your vehicle. They can’t just randomly stop vehicles that look like they might contain marijuana. If law enforcement broke the law to stop and search you, the entire case might be invalid.
Law enforcement also needs a search warrant to look for marijuana in your home. There are a few exceptions, but generally the rule is that law enforcement either needs an invitation from you to search your home or they need to get a search warrant signed by a judge before they walk in your home and look. If they don’t, you can have your entire case thrown out.
Your attorney can explore other defenses with you as well. Law enforcement has to prove to the jury that you’re the one who had possession of the marijuana. If the marijuana was under a seat or in a common area, that might be hard to prove. Your attorney can help you evaluate available defenses and make a game plan for your best defense.