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NY Penal Law § 221.05: Unlawful possession of marihuana

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.05: Unlawful possession of marihuana

Although marihuana is indeed an illegal drug in New York, it does not carry the same status as other controlled substances such as cocaine, heroin, and methamphetamine. While possessing a small quantity of marihuana is not a crime, at the same time, it is not legal. It is illegal to possess marihuana under New York Penal Code § 221.05. If it is only a small quantity, you will not be charged with a misdemeanor or a felony. Rather, you will be ticketed and will be obligated to pay a fine. Unlawful possession of marihuana is the normal charge in cases where someone is found in possession of one or a few marihuana cigarettes for his or her personal use. If the total weight of the marihuana exceeds 28 grams, then you could potentially be charged with a misdemeanor.


An Example

The police are called to a home to respond to a domestic dispute. As they enter the home the police officers take the scent of marihuana and observe two marihuana cigarettes on a table. The police ticket  the man on the charge of unlawful possession marihuana.


Offenses that are Related

Criminal possession of a controlled substance in the fifth degree: New York Penal Code § 220.06

Criminal sale of marihuana in the fifth degree: New York Penal Code § 221.35

Criminal sale of a controlled substance in the fifth degree: New York Penal Code § 220.31


Possible Defenses

Should you get charged with unlawful possession of marihuana, you might be able to challenge the search that revealed the marihuana. Pursuant to the law, in order to conduct a search, whether it is a search of your car, apartment or office, the police must demonstrate that they had probable cause to do so. If it is determined that the search was unlawful, anything which the search produced, including illicit drugs, would be inadmissible in court and your case would likely be dismissed.



Since unlawful possession of marihuana is a violation and not a crime, if you are found in possession of a small quantity of marihuana, you will be issued a ticket and be ordered to pay a fine of up to $100. Jail is not an option for this charge. Also, since unlawful possession of marihuana is not a crime, it does not go on your criminal record. That said, if within the previous 3 years you have been convicted of 2 other marihuana or controlled substances offenses, you could be sentenced up to 15 days in jail, and be ordered to pay a fine of $250.



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