NY Penal Law § 221.40: Criminal sale of marihuana in the fourth degree

There are 5 offenses in the New York Penal Code that make it illegal to sell marihuana. Like criminal sale of marihuana in the fifth degree, criminal sale of marihuana in the fourth degree is a misdemeanor. Under New York Penal code § 221.40, you will be charged with criminal sale of marihuana in the fourth degree if you sell 25 grams or less of marihuana. The exception to this rule is if you give away less than 2 ounce of marihuana or one marihuana cigarette.

The police received a tip about a man selling marihuana on a street corner. The same man sold 2 baggies of marihuana to an undercover police officer in exchange for $20.00. The man was arrested and charged with criminal sale of marihuana in the fourth degree.

1. Criminal possession of marihuana in the fourth degree: New York Penal Code § 221.15
2. Criminal possession of a controlled substance in the fourth degree: New York Penal Code § 220.09
3. Criminal sale of a controlled substance in the fourth degree: New York Penal Code § 220.34

If you are charged with criminal sale of marihuana in the fourth degree, you may be able to challenge the charge based on the actual weight of the marihuana and whether or not you received cash in exchange for the marihuana. If the weight was 2 ounces or less and you gave it away without receiving cash or anything else in exchange, then a charge of criminal sale of marihuana in the fourth degree would not be appropriate.

Another way to respond to the charge is to challenge the search that uncovered the material as unlawful. There are rules that the police must follow in order to search someone's home or someone's 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 criminal sale of marihuana in the fourth degree is a class A misdemeanor if convicted you could be sentenced to up to 1 year in jail. Your sentence could also include a probation term of 3 years as well as a fine. In determining your actual sentence the judge will consider a number of factors including your personal background and your criminal history. If you are a first time offender your sentence will be less severe than if you have a criminal history.

A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided in § 221.35 of this article.

Whether or not you view a marihuana crime as a "big deal," if you are convicted of criminal sale of marihuana in the fourth degree you could end up with in jail for a year 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.