Marijuana Decriminalized (Partially, Somewhat, Only a Little) in New York

Posted August 7, 2019

As of August 28, 2019, in New York possession of up to 2 ounces of marijuana is not considered a crime under the state’s Marijuana Reform.

Marijuana is decriminalized in New York as of August 28, 2019. As of that date, possession of up to 2 ounces of marijuana is not considered a crime under New York’s Marijuana Reform. Marijuana, however, is not legal in New York.

New York’s Marijuana Reform creates two degrees of Unlawful Possession of Marijuana, both of which are punished by a fine and are classified as a violation, which is not considered a criminal conviction. Possession of more than 2 ounces of marijuana remains a crime in New York. In addition, the sale of any weight of marijuana also remains a crime. Note: under New York Law marijuana is spelled “marihuana.”

There are two other important provisions of New York’s Marijuana Reform related to sealing and expungement of certain marijuana-related convictions. First, any criminal conviction of former Criminal Possession of Marijuana in the Fifth Degree, former Penal Law Section 221.10, which was a class B misdemeanor, will be sealed. Future non-criminal convictions of marijuana possession will also be sealed

Second, convictions under former Criminal Possession of Marijuana in the Fifth Degree or Unlawful Possession will automatically be expunged. Future non-criminal convictions of marijuana possession will also automatically be expunged. A person who was convicted of Criminal Possession of Marijuana in the Fifth Degree or Unlawful Possession in the past or a future marijuana violation can request that all records related to the case be destroyed

New York’s Marijuana Reform Law creates two new levels of non-criminal possession of up to 2 ounces:

Unlawful Possession of Marihuana in the Second Degree, Penal Law Section 221.05, states: a person is guilty of unlawful possession of marihuana in the second degree when he knowingly and unlawfully possesses marihuana.
- Unlawful possession of marihuana in the second degree is a violation punishable only by a fine of not more than $50.
- Unlawful Possession of Marihuana in the Second Degree was formerly known as Unlawful Possession of Marihuana, which was also a violation, though punishable of a fine of up to $100.

Unlawful Possession of Marihuana in the First Degree, Penal Law Section 221.10, states: as person is guilty of unlawful possession of marihuana in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or 3 substances are of an aggregate weight of more than one ounce (or 28.35 grams).
- Unlawful possession of marihuana in the first degree is a violation punishable only by a fine of not more than $200.

Criminal penalties for marijuana possession in New York now begin at a weight of more than 2 ounces. Possession of marijuana of more than 2 ounces is Criminal Possession of Marihuana in the Fourth degree, Penal Law Section 221.15 and is punished by a class A misdemeanor. Thus, it is no longer a crime to possess marijuana as long as it does not weigh more than 2 ounces (57.70 grams). If a person allegedly possesses 2 ounces or less of marijuana, then the charge will be Unlawful Possession of Marihuana in the First Degree, which is a violation and not a crime.

It remains a crime in New York to sell any weight of marijuanaIn addition, the following criminal marijuana possession laws remain in place:

Criminal Possession of Marihuana in the Third Degree, Penal Law Section 221.20, possession of more than 8 ounces of marijuana, which is punished by a class E felony.
Criminal Possession of Marihuana in the Second Degree, Penal Law Section 221.25, possession of more than one pound of marijuana, which is punished by a class D felony.
Criminal Possession of Marihuana in the First Degree, Penal Law Section 221.30, possession of more than 10 pounds of marijuana, which is punished by a class C felony.

It remains illegal in New York to sell any weight of marijuana.

To repeat, it remains a crime to sell any weight of marijuana in New York:

Criminal Sale of Marihuana in the Fourth Degree, Penal Law 221.40, bars the sale of any weight of marijuana and is punished by a class A misdemeanor.
Criminal Sale of Marihuana in the Third Degree, Penal Law 221.45, which is a class E felony, the sale of marijuana that weighs more than 25 grams.
Criminal Sale of Marihuana in the Second Degree, Penal Law 221.50, which is a class D felony, the sale of marijuana that weighs more than 4 ounces or the sale of any weight to a person who is less than 18 years old.
Criminal Sale of Marihuana in the First Degree, Penal Law 221.55, which is a class C felony, the sale of marijuana that weighs more than one pound.

New York’s Marijuana Reform allows for the expungement of certain prior and future convictions. Recently, New York allowed for the sealing of certain criminal convictions that are more than 10 years old, but this is the first time the term “expungement” is added to New York Law. Under new Penal Law Section 1.20(45), expungement means that an arrest and enforcement activity connected to the arrest, including prosecution and a disposition in court, is deemed a nullity and the accused is restored to a position occupied before an arrest, prosecution and/or disposition
An expunged case means that the arrest and prosecution never happened.

New York’s expungement of marijuana convictions applies to both prior and future convictions. First, a prior criminal conviction of former Criminal Possession of Marijuana in the Fifth Degree, former Penal Law Section 221.10, which was a class B misdemeanor, will be sealed and expunged. In addition, a prior conviction for Unlawful Possession of Marijuana, former Penal Law Section 221.05, which was a violation, will be expunged. Future non-criminal convictions of for Unlawful Possession of Marijuana in the First Degree and Second Degree will also be sealed and expunged. A person who was convicted of Criminal Possession of Marijuana in the Fifth Degree or Unlawful Possession in the past or a future marijuana violation can request that all records related to the case be destroyed.