NY Penal Law § 221.10: Criminal possession of marihuana in the fifth degree

Of the 6 New York marihuana possession charges, criminal possession of marihuana in the fifth degree is one of the least serious charges. It is a misdemeanor. Under New York Penal Code § 221.10 there are 2 bases of this charge. One is for the prosecutor to show that:

1. you possessed marihuana in a public place,
2. you did so knowingly and unlawfully, and
3. you had the marihuana in public view or you were burning it. 

In other words, if you smoke a marihuana cigarette in public you will be charged with criminal possession of marihuana in the fifth degree.

The second way for you to be convicted of criminal possession of marihuana in the fifth degree is for the prosecutor to prove:

1. that you possessed one or more preparations, compounds, mixtures or substances containing marihuana,
2. that you did so knowingly and unlawfully, and 
3. that the marihuana weighed more than 25 grams.

Two men and a woman leave a nightclub and walk to a nearby alley. They each light a marihuana cigarette and start to smoke. A couple of police officers observe them and arrest them. The two men and the woman could be prosecuted for criminal possession of marihuana in the fifth degree as each was burning marihuana in public view.

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 criminal possession of marihuana in the fifth degree you may be able to challenge the charge based on the actual weight of the marihuana. If the weight was less than 25 grams then the prosecutor could not sustain a charge of criminal possession of marihuana in the fifth second degree unless you were smoking it in public.

Another way to respond to a criminal possession of marihuana charge is to argue that the search that uncovered the marihuana was unlawful. For example, if the police searched your vehicle during a traffic stop, the police must have had probable cause to stop you and search your vehicle. In the absence of such probable cause the court may rule that the search was unlawful. Any evidence produced from an unlawful search is inadmissible. The prosecutor may have no choice but to dismiss the case against you.

Because criminal possession of marihuana in the fifth degree is a class B misdemeanor, if you are convicted the maximum possible sentence that you will receive is 3 months in jail. Your sentence could also include a probation term of 3 years. If you are sentenced to probation there will be several rules that you will be required to follow, including regularly reporting to your probation officer and staying away from known criminals. If you fail to follow the rules your probation may be revoked and you may be sent to jail.

A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses:

1. marihuana in a public place, as defined in § 240.00 of this chapter, and such marihuana is burning or open to public view; or

2. one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams.

While possessing marihuana for your own personal use may seem like a minor offense you could end up going to jail and paying a fine. However, there may be defenses that could result in the charge being reduced or dropped. Furthermore, if you have a substance abuse problem, you may be permitted to take advantage of Drug Treatment Court. 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.