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NY Penal Law § 22120 Criminal possession of marihuana in the third degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 221.20: Criminal possession of marihuana in the third degree

In general, people believe that marihuana use should be legal.  They feel it should not just be legalized for medicinal purposes, but also for recreational purposes.Because of this, oftentimes, when people get arrested for marihuana possession, they do not believe it is such a big deal. It is true that the law regards marihuana possession as a less egregious offense compared to possession of narcotics such as heroin, cocaine, and methamphetamine.  Despite this fact, if you get arrested for marihuana possession, you should still take it very seriously, especially if you are caught in possession of more than a small amount.  It is illegal to possess more than 8 ounces of marihuana under New York Penal Code § 221.20. To credibly convict you of criminal possession of marihuana in the third degree, the prosecutor must demonstrate the following:


  1. that you were in possession of one or more preparations, compounds, mixtures or substances containing marihuana,
  2. that you possessed it knowingly and unlawfully, and
  3. that the weight of the substance was 8 ounces or more.


This crime is a felony.


For Example

After a man got arrested for assault, the police searched him and found a baggie that contained 10 ounces of marihuana on his person. The man could also be prosecuted on the charge of criminal possession of marihuana in the third degree.


Offenses that are Related

Criminal sale of marihuana in the third degree: New York Penal Code § 221.45

Criminal sale of a controlled substance in the third degree: New York Penal Code § 220.39

Criminal possession of a controlled substance in the third degree: New York Penal Code § 220.16


Possible Defenses

Should you be charged with criminal possession of marihuana in the third degree you may be able to challenge the charge on the basis of the actual weight of the marihuana. If the weight turns out to be less than 8 ounces, then a charge of criminal sale of marihuana in the third degree would not be valid.


Another way to respond to the charge is to challenge 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, including illicit drugs, would be inadmissible in court and your case would likely be dismissed.



Due to the fact that criminal possession of marihuana is a class E felony, if you get convicted, the maximum possible prison sentence that you could serve is 4 years. Your sentence might also include a fine and a probation term of 5 years.  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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