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NY Penal Law § 221.10: Criminal possession of marihuana in the fifth degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.10: Criminal possession of marihuana in the fifth degree

Among the six New York marihuana possession charges, criminal possession of marihuana in the fifth degree is one of the least egregious charges. This crime is a misdemeanor. there are 2 conditions on which to base this charge under New York Penal Code § 221.10. 

One is for the prosecutor to demonstrate that that:

 

  • you were in possession of marihuana in a public place,
  • you possessed it knowingly and unlawfully, and
  • you had the marihuana positioned in public view or you were burning or smoking it. 

 

Put more concisely,  if you smoke marihuana in public, you can get charged with criminal possession of marihuana in the fifth degree.

 

The other way for you to face a conviction on the charge of criminal possession of marihuana in the fifth degree is for the prosecutor to prove:

 

  • that you were in possession of one or more preparations, compounds, mixtures or substances containing marihuana,
  • that possessed it knowingly and unlawfully, and 
  • that the weight of the  marihuana was more than 25 grams.

 

An Example

Two men and a woman depart from a nightclub and walk over to a nearby alley together. They each light up a marihuana cigarette and begin to smoke them.  A couple of police officers spot them and place them all under arrest. The two men and the woman could each be prosecuted on the charge of criminal possession of marihuana in the fifth degree, since each was burning marihuana in public view.

 

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

If you get charged with criminal possession of marihuana in the fifth degree, you could possibly challenge the charge on the basis of the actual weight of the marihuana. If the weight was lower than 25 grams, and you were not smoking it in public, then the prosecutor would not be able to sustain a charge of criminal possession of marihuana in the fifth second degree.

 

An alternative way to respond to a criminal possession of marihuana charge is to argue that the search in which the marihuana was revealed was unlawful. For instance, if the police conducted a search of your vehicle during a traffic stop, the police must have had probable cause to pull you over and search your car. 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, would be inadmissible in court and your case would likely be dismissed.

 

Sentence

Since criminal possession of marihuana in the fifth degree is categorized as a class B misdemeanor, if you are convicted the maximum sentence that you could possibly receive is 3 months in jail. Your sentence could also include a 3 year probation term. If you are sentenced to probation, there will be a set of rules that you will be obligated to follow, including consistently reporting to your probation officer and staying away from known criminals. If you violate the probation by neglecting to follow the rules, your probation may be revoked and you may be sent to jail.

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