Defending tickets for marihuana
and related offenses
Marijuana defined
New York’s Penal Law § 220 refers to Article 33
§ 3302 of New York’s public health law for the definition of marihuana. Under
sub section 21 of PHL § 3302, "Marihuana" means all parts of the
plant of the genus Cannabis, the seeds thereof (unless sterilized and incapable
of germination), and the resin extracted there from. It does not
include the stalks of the plant, fiber produced from the stalks, or oil or
cake made from the seeds of the plant.
Marijuana is not a “controlled substance” such
as cocaine, heroin, or other drugs, unless it is "Concentrated
Cannabis," which is defined as the separated resin obtained from a plant,
or a substance which contains more than 2 ½% by weight of delta-9 tetrahydrocannabinol,
or delta-1 tetrahydrocannabinol or its isomer.
If you are in possession of concentrated cannabis
you will be charged with possession of a controlled substance under NY Penal
Law § 220. If you are in possession of traditional marihuana you will be charged
under NY Penal Law § 221.
Offenses involving marihuana
New York’s marijuana statutes are codified at NY Penal Law § 221. There are 11 marihuana
statutes ranging from a violation to a class C felony. The 11 marijuana statutes
are:
Statute |
Level |
NY Penal L. § 221.05. Unlawful
possession of marihuana (UPM) |
Violation |
NY Penal L. § 221.10. Criminal
Possession marijuana 5th Degree |
Class
B Misdemeanor |
NY Penal L. § 221.15. Criminal
Possession marihuana 4th Degree |
Class
A Misdemeanor |
NY Penal L. § 221.20. Criminal
Possession marijuana 3rd Degree |
Class
E Felony |
NY Penal L. § 221.25. Criminal
Possession marihuana 2nd Degree |
Class
D Felony |
NY Penal L. § 221.30. Criminal
Possession marijuana 1st Degree |
Class
C Felony |
NY Penal L. § 221.35. Criminal
sale marihuana 5th Degree |
Class
B Misdemeanor |
NY Penal L. § 221.40. Criminal
sale marijuana 4th Degree |
Class
A Misdemeanor |
NY Penal L. § 221.45. Criminal
sale marihuana 3rd Degree |
Class
E Felony |
NY Penal L. § 221.50. Criminal
sale marijuana 2nd Degree |
Class
D Felony |
NY Penal L. § 221.55. Criminal
sale marihuana 1st Degree |
Class
C Felony |
Elements of a marijuana possession
charge
Unlawful possession of marihuana (UPM),
Penal Law § 221.05:
Possession of any amount of marijuana is illegal
and a violation
Criminal possession of marihuana in the
5th degree, Penal L. § 221.10 (CPM 5th):
Possessing marijuana in public, open to view whether
or not burning, or when the aggregate weight is more than twenty-five (25)
grams.
Criminal possession of marijuana in the
4th degree, Penal L. § 221.15 (CPM 4th):
Possessing marihuana with an aggregate weight
of more than two (2) ounces.
Criminal possession of marijuana in the
3rd degree, NY Penal L. § 221.20 (CPM 3rd):
Requires possessing marihuana with an aggregate
weight of more than eight (8) ounces.
Criminal possession of marijuana in the
2nd degree, NY Penal Law § 221.25 (CPM 2nd):
Possessing marijuana with an aggregate weight
of more than sixteen (16) ounces.
Criminal possession of marihuana in the
1st degree, NY Penal Law § 221.30 (CPM 1st)
Possessing marihuana with an aggregate weight
of more than ten (10) pounds.
Elements of a marihuana sale
charge
Criminal sale of marijuana in the fifth
degree, NY Penal Law § 221.35:
Sale of marihuana of 2 grams or less, or 1 or
more marijuana cigarettes even if less than 2 grams.
Criminal sale of marihuana in the fourth
degree, NY Penal Law § 221.40:
Sale of marijuana of an aggregate weight of more
than 2 grams.
Criminal sale of marijuana in the third
degree, NY Penal Law § 221.45:
Sale of marijuana of an aggregate weight of more
than 25 grams.
Criminal sale of marihuana in the second
degree, NY Penal Law § 221.50:
Sale of marihuana of an aggregate weight of more
than 4 ounces, or sells marihuana of any weight to a person less than 18 years
of age.
Criminal sale of marijuana in the fourth
degree, NY Penal Law § 221.55:
Sale of marijuana of an aggregate weight of more
than 16 ounces.
Defending your unauthorized
possession of marijuana charge
Despite the fact that Unlawful possession of marihuana
(UPM), NY Penal L. § 221.05 is a violation and not a crime, it is still a serious charge.
Even if charged on a summons it’s still an arrest; a conviction results in
a criminal history, and a drug charge can affect your future ability to get
employment, college scholarships, college financial aid, and into the school
of your choice. A conviction can also result in expulsion from a school that
you are in or loss of a job. Misdemeanor and felony marijuana convictions
can also result in a suspension of your driver’s license, whether or not you
were caught with the marihuana while driving or in a car. Being charged with
possession with intent to sell is even worse. It implies that you are a “drug
dealer.”
Attack That Ticket’s nuclear defense to a marihuana possession
charge
What many prosecutors, judges, and defense lawyers do not
know is that there is a mandatory defense written right into the criminal
procedure law, NY CPL. § 170.56, which requires a dismissal or an adjournment
in contemplation of a dismissal for first time offenders charged with unlawful
possession of marihuana, Criminal Possession marijuana 5th
Degree, Criminal Possession marihuana 4th Degree, Criminal sale
marijuana 5th Degree, and Criminal sale marihuana 4th
Degree. New York CPL § 170.56 REQUIRES that, upon a defendant’s application
a first time offense for the above charges must be either dismissed in the
interest of justice or granted an adjudication in contemplation of dismissal
(an “ACD” or an “ACOD”). Adjudication in contemplation of dismissal is the
functional equivalent of an immediate dismissal because the case gets dismissed
by operation of law within 1 year from the date the ACD was granted, contingent
upon the defendant not getting arrested within that 1 year.
Other defenses to your marijuana charge
Even if you are not a first time
offender, there are other defenses available. Sometimes we negotiate a harassment
or disorderly conduct violation to get our client an “out of drug” conviction
which will have less of an impact on his record. Often times a defense comes
down to discrediting the alleged weight of the marihuana you were charged
with. Many times the marihuana is collateral charge to a different issue such
as a search incident to arrest or a motor vehicle stop. In those cases we
challenge the validity of the underlying stop and search to have the marijuana
evidence suppressed as fruits of the poisonous tree. When our evaluation reveals
that the prosecution has a strong case against you we negotiate a deal that
makes sense. If you have a serious drug problem we seek alternate diversionary
remedies such as drug court and other drug treatment programs.
Do you have an uncleared marihuana
arrest warrant for failure to appear?
If there is an arrest warrant for your failure to appear on
a charge of unauthorized possession of marijuana you should not leave this
“hanging over your head.” If this is you then you probably received a ticket
some time ago, thought it was a joke, ignored it, and are now wondering what
happened to it. Or maybe you went for a job or background check, or were pulled
over out of state and were advised of an open warrant in New York.
We routinely represent people on outstanding warrants, and
with all of the defenses available with a marihuana charge it makes no sense
to keep the warrant open. When you retain our office to resolve such a matter
we contact the court and prosecutor and, rather than surrendering you to the
local police department surrender you to the court on a regularized calendar
date. Most often we pre-conference the case with the prosecutor and have a
resolution in place whereby the warrant can be recalled and your case dismissed
or plead out to a violation or ACD.