New York Marijuana Possession and Sale Attorney
While New York does allow for limited medical marijuana use, possession of marijuana (or “marihuana,” as it is called in the New York Penal Law) is still a crime in any other context.
Possession of Marihuana in New York
The charge associated with possession of marijuana in New York depends on both the amount of marijuana possessed and the circumstances of the possession.
Unauthorized Possession of Marijuana (UPM)
Unlawful Possession of Marijuana—known as UPM—is the least serious marijuana-related offense in New York. UPM, Penal Law Section 221.05, is defined as knowingly and unlawfully possessing marijuana, and is a violation, not a crime. A first offense is punished by a $100 fine. The penalty does increase with multiple convictions. A third offense within three years carries a penalty of 15 days in jail and a fine of up to $250. However, as a practical matter, this rarely occurs. As a former Assistant District Attorney in Manhattan, I arraigned thousands of defendants and never saw a person sentenced to jail for UPM alone.
It is unusual for a person to be arrested for UPM alone. More often, the charge results when someone is arrested for another crime and found to be in possession of a small amount of marijuana at the time of the arrest.
Criminal Possession of Marijuana in the Fifth Degree
The most commonly charged marijuana crime in New York is known as Criminal Possession of Marijuana (CPM) in the Fifth Degree, Penal Law Section 221.10. This crime occurs in one of two ways:
- Openly possessing marijuana (burning or not); or
- Possessing more than 25 grams of marijuana, openly or not
Note that in some areas of New York City, simply holding a marijuana cigarette will trigger an arrest. Thus, if police witness a group of people passing a joint, each person who touched or held the joint could be charged with CPM in the Fifth Degree.
CPM in the Fifth Degree is a class B misdemeanor, carrying a maximum sentence of up to 90 days in jail. However, a criminal conviction can usually be avoided for a first offense. If a person is convicted of the crime, either through a plea agreement or verdict after trial, it is often still possible to avoid jail time. However, a conviction of CPM in the Fifth Degree will result in a criminal record.
Marijuana Adjournment in Contemplation of Dismissal
In the vast majority of first offense Unauthorized Possession of Marijuana and Criminal Possession of Marijuana in the Fifth Degree cases, it is possible to negotiate a Marijuana Adjournment in Contemplation of Dismissal (MACD). Assuming that any associated terms are successfully completed, the charges will be dismissed and the case sealed after 12 months.
An MACD may also be offered in connection with certain other marijuana-related crimes. However, a person who has previously benefitted from an MACD will not be eligible.
Criminal Possession of Marijuana in the First, Second, Third and Fourth Degree
The degree associated with a CPM charge is determined by the weight of marijuana possessed. The classification is:
|Degree||Weight||Classification of Crime|
|CPM in the Fourth Degree||More than 2 ounces||Class A Misdemeanor|
|CPM in the Third Degree||More than 8 ounces||Class E Felony|
|CPM in the Second Degree||More than 16 ounces||Class D Felony|
|CPM in the First Degree||More than 10 pounds||Class C Felony|
Enforcement of Marijuana Laws in New York
While it is a crime to possess even a small amount of marijuana without proper authorization under New York’s medical marijuana program, enforcement of low-level marijuana laws varies from county to county. Brooklyn District Attorney Ken Thomson has stated that Criminal Possession of Marijuana, possession of under 25 grams, will not be prosecuted in Criminal Court.
NYPD Policy on Possession of Small Amounts of Marijuana
The New York Police Department (NYPD) also announced late in 2014 that it would not arrest people for open possession of less than 25 grams of marijuana if the substance is not burning and the possession is consistent with personal use. This is codified in New York City Police Department’s Patrol Guide.
Instead, the NYPD will issue a criminal summons with the charge of Unlawful Possession of Marijuana (UPM). Many cases in summons court are dismissed, so long as the defendant follows proper procedures. Failure to appear when summoned will result in arrest.
None of this should be construed to mean that it is legal, acceptable or risk-free to openly possess or use marijuana in the state of New York. It is important to note that these policies apply only in limited areas, and that there is leeway for an arrest even when the policy might not normally dictate one. For example, police may argue that the circumstances of the possession were consistent with sale rather than personal use.
New York Marijuana Law v. New York Controlled Substance Law
Unlike the federal government and many other jurisdictions, New York treats possession of marijuana differently from possession of controlled substances, which is found in Article 221 of the Penal Law. For example, sale of any controlled substance is a felony, whereas sale of less than 25 grams of marijuana is a class A misdemeanor. In general, both possession and sale of marijuana in the state of New York carry less severe penalties than possession or sale of any controlled substance.
New York marijuana laws do not apply to synthetic cannabinoids. Synthetic cannabinoids are known by a variety of names, including K2 and Spice. They can be a less expensive alternative to marijuana, but use can be dangerous. Possession of synthetic cannabinoids is a violation under Section 229 of the Public Heath Law, and carries a penalty of a fine of up to $250, 15 days in jail, or both.
New York Marijuana Sale Lawyer
In most cases, marijuana sale statutes are based on weight, just like possession charges. The general breakdown is:
|Degree||Weight||Classification of Crime|
|Criminal Sale of Marijuana in the Fourth Degree||Any weight, but usually under 25 grams||Class A Misdemeanor|
|Criminal Sale of Marijuana in the Third Degree||More than 25 grams (.88 ounces)||Class E Felony|
|Criminal Sale of Marijuana in the Second Degree||More than 113 grams (4 ounces)||Class D Felony|
|Criminal Sale of Marijuana in the First Degree||More than 453 grams (16 ounces)||Class C Felony|
There are two circumstances in which the charges for sale of marijuana deviate from the standards above.
- If no money is given for less than 2 grams or 1 marijuana cigarette, the charge will be Criminal Sale of Marihuana in the Fifth Degree, which is punishable as a class B misdemeanor.
- Sale of any amount of marijuana to a person under the age of 18 is Criminal Sale of Marihuana in the Second Degree and a class D felony.