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NY Penal Law § 221.55: Criminal sale of marihuana in the first degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.55: Criminal sale of marihuana in the first degree

Although it is not considered as serious as selling large amounts of other controlled substances such as heroin, cocaine or methamphetamine, selling large amounts of marihuana is still a serious offense.  It is against the law to sell more than 16 ounces of marihuana or a mixture containing marihuana under New York Penal Code § 221.55, criminal sale of marihuana in the first degree. This is a felony offense. It is critical that you understand that even if you do not exchange the marihuana for cash, you can still be convicted under this statute. The definition of selling under New York Penal Code § 220.001(1) also means to exchange, give or dispose of to another, or to offer or agree to do so. Therefore, you can get convicted under the criminal sale of marihuana in the first degree even if the “sale” was not completed, or even if you did not receive anything in exchange for passing marihuana off to another person.


For the purposes of this statute, the word  “marihuana” includes the following (as long as it contains marihuana):


  1. Compounds
  2. Preparations
  3. Substances
  4. Mixtures



On the basis of a tip that someone was selling marihuana on a particular street corner, the police set up surveillance of that intersection. While surveying the area, they observed a man selling small bags of marihuana on several occasions to various people. Based on this information, the police obtained and executed a search warrant on the man’s residence.  In the search, they found 4 pounds of marihuana. The man could face prosecution for criminal sale of marihuana in the first degree on the basis of the amount of marihuana discovered in his home coupled with the evidence that he regularly sold drugs on the street.


Offenses that are Related

Criminal possession of marihuana in the first degree: New York Penal Code § 221.30

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

If you can demonstrate that the amount of marihuana involved in the incident was lower than 16 ounces, then the prosecutor would not be able to successfully prosecute you on the charge of criminal sale of marihuana in the first degree.


A potential alternative defense is entrapment. Numerous arrests that are made in relation to selling marihuana involve the deployment of undercover police officers or confidential informants (CI) initiating a drug buy. If the undercover officer or CI was too aggressive in initiating the purchase, you may have a valid entrapment defense.



Since criminal sale of marihuana in the first degree is categorized as a class C felony, if you are convicted, your possible sentence will be as many as 15 years in prison. The minimum sentence that the judge can hand you is either 3 1/2 or 7 years.  Which minimum applies to you depends upon whether or not you have a prior felony conviction. You will also be ordered to pay a fine of up to $15,000.



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