NY Penal Law § 221.35: Criminal sale of marihuana in the fifth degree

Of the 5 sale of marihuana charges in the New York Penal Code, criminal sale of marihuana in the fifth degree is the least serious. Under New York Penal Code § 221.35, for you to be convicted of criminal sale of marihuana in the fifth degree the prosecutor must show each of the following:

1. That you sold two grams or less of marihuana or one marihuana cigarette
2. That you "sold" the marihuana without consideration; in other words, you gave away the marihuana
3. That you did so knowingly and unlawfully

This is the crime that you will face for simply giving a family member or friend a marihuana cigarette. It is a misdemeanor.

An undercover police officer was observing an area known for drug activity saw a man give a woman what appeared to be a marihuana cigarette. The woman lit the cigarette and began to smoke it. The officer arrested both of them. The man was charged with criminal sale of marihuana in the fifth degree while the woman was charged with criminal possession of marihuana in the fifth degree.

1. Criminal possession of marihuana in the fifth degree: New York Penal Code § 221.10
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

One way to defend a charge of criminal sale of marihuana in the fifth degree is to challenge the search that uncovered the material as unlawful. There are rules that the police must follow in order to stop and search someone's person or someone's home. 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 criminal sale 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.

A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of two grams or less; or one cigarette containing marihuana.

Whether or not you view a marihuana crime as a "big deal," the law views marihuana offenses as serious. Even if you are convicted of the least serious sale of marihuana crime, you could end up in jail and you will have a criminal record. Because of the potential consequences you should immediately contact an attorney who has experience defending those accused of marihuana offenses. 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.