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Drug Charges – Marihuana
In New York, there are several ways a defendant can be charged with a marihuana offense. The most common type of marihuana charge filed in New York is Unlawful Possession of Marihuana involving small amounts of marihuana. This offense is a violation, not a criminal charge. A conviction to Unlawful Possession of Marihuana in New York will not result in a criminal record. Even though a conviction for this offense will not give a defendant a criminal record, it is always best to avoid being convicted of a drug offense when possible. A first time offense of Unlawful Possession of Marihuana can usually be dismissed with the assistance of an attorney.
The remaining types of marihuana charges are categorized as misdemeanors and felonies. Whether a defendant is charged with a violation, misdemeanor or felony depends primarily on the weight involved and whether the marijuana was being sold or simply possessed. The more weight involved, the more serious the offense.
Below is the statute defining the elements of the different types of Possession of Marihuana charges.
221.05 Unlawful Possession of Marihuana.
A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter, committed within the three years immediately preceding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.
Criminal Possession of Marihuana in the Fifth Degree (S 221.10) is similar to Unlawful Possession of Marihuana however it has a public view or burning component to it. Also if the weight involves 25 grams or more, a defendant may be charged with this offense. Criminal possession of marihuana in the fifth degree is a “B” misdemeanor. Below is the statute:
A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses:
1.Marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or
2.One or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams.
Criminal Possession of Marihuana in the Fourth Degree (S 221.15) involves two or more ounces. Criminal possession of marihuana in the fourth degree is a class A misdemeanor. Below is the statute:
A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces.
Criminal Possession of Marihuana in the Third Degree (S 221.20) involves eight or more ounces. Criminal possession of marihuana in the third degree is a class E felony. Below is the statute:
A person is guilty of criminal possession of marihuana in the third degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than eight ounces.
Criminal Possession of Marihuana in the Second Degree (S 221.25) involves sixteen or more ounces. Criminal possession of marihuana in the second degree is a class D misdemeanor. Below is the statute:
A person is guilty of criminal possession of marihuana in the second degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces.
Criminal Possession of Marihuana in the First Degree (S 221.30) involves more than 10 pounds of marihuana. Criminal possession of marihuana in the first degree is a class C felony. Below is the statute:
A person is guilty of criminal 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 substances are of an aggregate weight of more than ten pounds.
Criminal Sale of Marihuana in the Fifth Degree (S 221.35)
A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of two grams or less; or one cigarette containing marihuana.
Criminal sale of marihuana in the fifth degree is a class B misdemeanor.
Criminal Sale of Marihuana in the Fourth Degree (S 221.40)
A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided in section 221.35 of this article.
Criminal sale of marihuana in the fourth degree is a class A misdemeanor.
Criminal Sale of Marihuana in the Third Degree (S 221.45)
A person is guilty of criminal sale of marihuana in the third degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams.
Criminal sale of marihuana in the third degree is a class E felony.
Criminal Sale of Marihuana in the Second Degree (S 221.50)
A person is guilty of criminal sale of marihuana in the second degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than four ounces, or knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana to a person less than eighteen years of age.
Criminal sale of marihuana in the second degree is a class D felony.
Criminal Sale of Marihuana in the First Degree (S 221.55)
A person is guilty of criminal sale of marihuana in the first degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces.
Criminal sale of marihuana in the first degree is a class C felony.