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NY Penal Law § 221.40: Criminal sale of marihuana in the fourth degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.40: Criminal sale of marihuana in the fourth degree

In the New York Penal Code, there are five offenses that make it illegal to sell marihuana. Similarly to criminal sale of marihuana in the fifth degree, criminal sale of marihuana in the fourth degree is a misdemeanor., you will be charged with criminal sale of marihuana in the fourth degree under New York Penal code § 221.40 if you sell 25 grams or less of marihuana. The only exception to this legislation is if you give away less than 2 ounce of marihuana or one marihuana cigarette.  In that case, your charge would be criminal sale of marihuana in the fifth. 

 

For Example

The police get tipped off about a man selling marihuana on a particular street corner. The man identified by the informant sold 2 baggies of marihuana to an undercover police officer in exchange for $20.00. The man was placed under arrest and charged with criminal sale of marihuana in the fourth degree.

 

Offenses that are Related

Criminal possession of marihuana in the fourth degree: New York Penal Code § 221.15

Criminal sale of a controlled substance in the fourth degree: New York Penal Code § 220.34

Criminal possession of a controlled substance in the fourth degree: New York Penal Code § 220.09

 

Possible Defenses

If you are charged with criminal sale of marihuana in the fourth degree, you could potentially challenge the charge on the basis of the actual weight of the marihuana.  You could also argue as to whether or not you received cash in exchange for the marihuana. If the marihuana weighed 2 ounces or less and you gave it away without consideration (that is, without receiving cash or anything else in exchange), then the charge of criminal sale of marihuana in the fourth degree would not be valid.

 

An alternative way to respond to the charge 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, including drugs, would be inadmissible in court and your case would likely be dismissed.

 

Sentence

Since criminal sale of marihuana in the fourth degree is a class A misdemeanor, if you are convicted, you could be sentenced to up to 1 year in jail. Your sentence may also include a 3 year probation term as well as a fine. For the purpose of determining your sentence, the judge will take several factors into consideration.  These factors include the crime committed, the details of the crime, your criminal history and your personal background. If you are a first time offender, then your sentence will be a lot less severe than if you have a criminal history.

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