NY Penal Law § 221.05: Unlawful possession of marihuana

While marihuana is an illegal drug in New York, it does not have the same status as controlled substances such as cocaine, heroin, and methamphetamine. While possessing a small amount of marihuana is not a crime, it is also not legal. Under New York Penal Code § 221.05 it is illegal to possess marihuana. If it is just a small amount, you will not be charged with a misdemeanor or a felony. Instead you will be ticketed and will be required to pay a fine. Unlawful possession of marihuana is typically the charge in cases where someone has one or a few marihuana cigarettes for his or her personal use. If the amount of marihuana exceeds 28 grams, then you could be charged with a misdemeanor.

The police are called to a home because of a domestic dispute. Upon entering the home the police officers smell marihuana and notice a couple of marihuana cigarettes on a table. The police issue the man a ticket for possessing marihuana.

1. Criminal sale of marihuana in the fifth degree: New York Penal Code § 221.35
2. Criminal possession of a controlled substance in the fifth degree: New York Penal Code § 220.06
3. Criminal sale of a controlled substance in the fifth degree: New York Penal Code § 220.31

If you are charged with unlawful possession of marihuana you may be able to challenge the search that uncovered the marihuana. There are rules that the police must follow in order to search someone's home or person. If the police do not follow such rules a court may find that the search was unlawful. If that happens the prosecutor may have no choice but to dismiss the case against you.

Because unlawful possession of marihuana is a violation and not a crime, if you are found in possession of a small amount of marihuana you will be issued a ticket and be required to pay a fine of up to $100. Jail is not an option. Also, because unlawful possession of marihuana is not a crime, it will not go on your criminal record. However, if within the 3 years prior you have been convicted of 2 other marihuana or controlled substances offenses your sentence may include up to 15 days in jail, plus a fine of $250.

A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.

While unlawful possession of marihuana is only a violation, oftentimes it is accompanied by additional criminal charges such as other drug crime charges, or charges related to domestic violence or assault. Furthermore, depending on your prior criminal history, a conviction of unlawful possession of marihuana could result in some jail time and could impact the disposition of other cases. Because of these potential consequences even if you have been charged with one of the less serious drug possession offenses, you should immediately contact an attorney who has experience defending those accused of marihuana possession. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been accused of marijuana possession, marijuana distribution, as well as other drug crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of drug crimes in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.