NY Penal Law § 221.45: Criminal sale of marihuana in the third degree

In New York there are 5 offenses related to selling marihuana. Two of them are misdemeanors and 3 are felonies. Under New York Penal Code § 221.45 it is a felony to sell over 25 grams of marihuana. For the purposes of this statute "marihuana" includes the following as long as they contain marihuana:

1. Preparations
2. Compounds
3. Mixtures
4. Substances

It is important to understand that you can be convicted under this statute even if you do not exchange the marihuana for cash. Under New York Penal Code § 220.001(1) the definition of selling also means to exchange, give or dispose or to another, or to offer or agree to do so. Thus, you can be convicted under the criminal sale of marihuana in the first degree even if the "sale" was not completed, or even if you did not receive anything in exchange for handing marihuana to another person.

A confidential informant (CI) made a purchase of marihuana from a woman with buy money provided by the police. The police later confirmed that the amount of marihuana purchased was 100 grams. The woman was arrested and charged with sale of marihuana in the third degree. Because the amount of marihuana involved was over 25 grams and less than 113 grams (4 ounces), the prosecutor charged her with criminal sale of marihuana in the third degree.

1. Criminal possession of marihuana in the third degree: New York Penal Code § 221.20
2. Criminal possession of a controlled substance in the third degree: New York Penal Code § 220.16
3. Criminal sale of a controlled substance in the third degree: New York Penal Code § 220.39

If you can show that the amount of marihuana involved in the incident was less than 25 grams, then you have a valid defense to a charge of criminal sale of marihuana in the third degree.

Because criminal sale of marihuana is a class E felony, if you are convicted the maximum possible prison sentence that you will receive is 4 years. Your sentence could also include a fine as well as a probation term of 5 years. In determining your sentence the judge will consider the crime committed, the details of the crime, 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 prior criminal history.

A person is guilty of criminal sale of marihuana in the third degree when he knowingly and unlawfully sells 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.

Although there have been debates about whether or not marihuana should be legal, in New York it is illegal. If you are convicted of criminal sale of marihuana in the third degree you could end up in prison for up to 4 years. In addition, you may have to pay a fine 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.