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NY Penal Law § 221.35: Criminal sale of marihuana in the fifth degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.35: Criminal sale of marihuana in the fifth degree

Among the five charges against the sale of marihuana in the New York Penal Code, criminal sale of marihuana in the fifth degree is the least serious. For you to be convicted of criminal sale of marihuana in the fifth degree under New York Penal Code § 221.35, the prosecutor needs to show each of the following:

 

  1. That you sold one marihuana cigarette or two grams or less of marihuana
  2. That the “sale” of marihuana you conducted was without consideration; in other words, you gave away the marihuana
  3. That you did this knowingly and unlawfully

 

This is the offense charge that you will face for simply giving a family member or friend a marihuana cigarette. Criminal sale of marihuana in the fifth degree is a misdemeanor.

 

For Example

An undercover police officer was surveying an area known for drug activity.  During the course of the day, she witnessed a man giving a woman what appeared to be a marihuana cigarette. The woman then lit the cigarette and began to smoke it. The officer placed both of them under arrest. The man got charged with criminal sale of marihuana in the fifth degree. On the other hand, the woman got charged with criminal possession of marihuana in the fifth degree.

 

Offenses that are Related

Criminal possession of marihuana in the fifth degree: New York Penal Code § 221.10

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

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

 

Possible Defenses

One way to defend against a charge of criminal sale of marihuana in the fifth degree is to challenge the search that revealed the material as 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.

 

Sentence

Due to the fact that criminal sale of marihuana in the fifth degree is a class B misdemeanor, if you are convicted, the maximum possible sentence that you could receive is 3 months in jail. The sentence may also include a probation term of 3 years.

 

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