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NY Penal Law § 221.30: Criminal possession of marihuana in the first degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.30: Criminal possession of marihuana in the first degree

Among the six possession of marihuana offenses in the New York Penal Code, criminal possession of marihuana in the first degree is the most serious and bears the harshest punishment. This is a felony offense.  You would face a charge of first degree criminal possession of marihuana under New York Penal Code § 221.30 if you:

  1. were in possession of one or more preparations, compounds, mixtures or substances containing marihuana,
  2. you possessed it knowingly and unlawfully, and
  3. the total weight of the marihuana was 10 pounds or more.

Bear in mind that if you are in a vehicle in which  marihuana is found by authorities, under New York Penal code § 220.25 it would be sufficient evidence to demonstrate that you possessed the marihuana. The one exception to this general rule is if the drugs are found on the person of someone else in the vehicle. Similarly, if the marihuana is in a room, in open view, and you are in close proximity to the marijuana, authorities would assume that you and whoever else is nearby are in possession of that marihuana.

For Example

Police arrive at a woman’s home in response to a report of a disturbance. On arrival, they took a strong scent of marijuana as soon as the woman opened the door. The police could spot a few baggies of marihuana and a couple of marihuana cigarettes in plain sight. When they searched the woman’s home, they discovered a large box of marijuana in a closet. They placed the woman under arrest. The police lab later determined that the total weight of the marijuana found in the woman’s home was 12 pounds. The woman could be prosecuted on the charge of criminal possession of marihuana in the first degree.

Offenses that are Related

Criminal sale of marihuana in the first degree: New York Penal Code § 221.55

Criminal sale of a controlled substance in the first degree: New York Penal Code § 220.43

Criminal possession of a controlled substance in the first degree: New York Penal Code § 220.21

Possible Defenses

Should you be charged with criminal possession of marihuana in the second degree, you might be able to challenge the charge based on the weight of the marihuana found. If its weight was not more than 10 pounds, then the prosecutor would not be able to sustain a charge of criminal sale of marihuana in the first degree.

An alternative way to respond to a criminal possession of marihuana charge is to argue that the search in which the marihuana was discovered was unlawful. 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.

The Sentence

Since criminal possession of marihuana in the first degree is a grouped as a class C felony, if you are convicted, your sentence could possibly be up to 15 years in prison. The minimum sentence you could get from the judge is either 3 1/2 or 7 years, depending upon whether or not you have a prior felony conviction on your record. Upon release from prison, you might also be required to serve a term of post-release supervision.

Financial consequences are attached to being convicted for first degree criminal possession of marihuana as well. The judge may order you to pay a fine of as much as $15,000 on top of other mandatory fees that you will be obligated to pay.

NY Penal Law § 221.25: Criminal possession of marihuana in the second degree

The New York Penal Code includes a total of six possession of marihuana charges. One is a violation, two of them are misdemeanors, and three are felonies. Under New York Penal Code § 221.25, criminal possession of marihuana in the second degree is a felony.  It is also the second most serious marihuana possession crime. In order to get a conviction against you for this crime, the prosecutor must demonstrate show following:

  • that you were in possession one or more preparations, compounds, mixtures or substances containing marihuana,
  • that you possessed it knowingly and unlawfully, and
  • that the weight of the substance was more than 16 ounces.

For Example

A police officer pulled a vehicle over because of its excessively tinted windows. When approaching the vehicle, the officer took the scent of marihuana. When the officer searched the vehicle, he found a bag full of marihuana in the trunk of the car. The man was placed under arrest for several offenses, including a charge of criminal possession of marihuana. If the police lab determines that the weight of the marihuana was between 1 and 10 pounds, then the man will be facing a charge of criminal possession of marihuana in the second degree.

Offenses that are Related

Criminal sale of marihuana in the second degree: New York Penal Code § 221.50

Criminal sale of a controlled substance in the second degree: New York Penal Code § 220.41

Criminal possession of a controlled substance in the second degree: New York Penal Code § 220.18

Possible Defenses

Should you be charged with criminal possession of marihuana in the second degree, you might be able to challenge the charge based on the weight of the marihuana found. If it weighed 16 ounces or less, then the prosecutor would not be able to sustain a charge of criminal sale of marihuana in the second degree.

An alternative way to respond to a criminal possession of marihuana charge is to argue that the search that uncovered the marihuana was unlawful. 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.

Sentence

Due to the fact that criminal possession of marihuana in the second degree is categorized as a class D felony, if you are convicted, your possible sentence will be as much as 7 years in prison. Your actual sentence will rely upon a number of factors, including your prior criminal history. If you are a first time offender, then your sentence will be a lot less severe than if you have a criminal history.

On top of that, there may be financial penalties for a criminal sale of marihuana in the second degree conviction, including a fine of up to $5,000 and additional mandatory fees.

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