New York’s Marihuana laws have greatly changed since 2019. In 2021, New York legalized adult possession and use of cannabis. It is now lawful for a person 21 years of age or older to possess up to 3 ounces of cannabis or 24 grams of concentrated cannabis. A person may also lawfully possess up to 5 pounds of cannabis in a private residence or on the grounds of that residence, subject to statutory storage requirements.
Possession above the lawful personal-use amount can result in a violation, misdemeanor, or felony depending on the amount and whether the substance is cannabis or concentrated cannabis.
New York Marihuana Charges: Possession
New York Penal Law Article 222 contains four principal levels of unlawful or criminal cannabis possession:
- Unlawful Possession of Cannabis (PL 222.25);
- Criminal Possession of Cannabis in the Third Degree (PL 222.30);
- Criminal Possession of Cannabis in the Second Degree (PL 222.35); AND
- Criminal Possession of Cannabis in the First Degree (PL 222.40).
Unlawful Possession of Cannabis (PL 222.25)
Under New York Penal Law 222.25, a person is guilty of Unlawful Possession of Cannabis when the person knowingly and unlawfully possesses:
- More than 3 ounces of cannabis; or
- More than 24 grams of concentrated cannabis.
Penalties for Unlawful Possession of Cannabis
Unlawful Possession of Cannabis is a violation punishable by a fine of not more than $125.
Criminal Possession of Cannabis in the Third Degree (PL 222.30)
Under New York Penal Law 222.30, a person is guilty of Criminal Possession of Cannabis in the Third Degree when the person knowingly and unlawfully possesses:
- More than 16 ounces of cannabis; or
- More than 5 ounces of concentrated cannabis.
Penalties for Criminal Possession of Cannabis in the Third Degree
Criminal Possession of Cannabis in the Third Degree is a Class A misdemeanor, punishable by up to 364 days in jail. The sentence in a particular case depends on the facts, the person’s criminal history, and the sentencing options authorized by law.
Criminal Possession of Cannabis in the Second Degree (PL 222.35)
Under New York Penal Law 222.35, a person is guilty of Criminal Possession of Cannabis in the Second Degree when the person knowingly and unlawfully possesses:
- More than 5 pounds of cannabis; or
- More than 2 pounds of concentrated cannabis.
Penalties for Criminal Possession of Cannabis in the Second Degree
Criminal Possession of Cannabis in the Second Degree is a Class E felony. The sentencing range depends on the individual’s criminal history and other circumstances.
Criminal Possession of Cannabis in the First Degree (PL 222.40)
Under New York Penal Law 222.40, a person is guilty of Criminal Possession of Cannabis in the First Degree when the person knowingly and unlawfully possesses:
- More than 10 pounds of cannabis; or
- More than 4 pounds of concentrated cannabis.
Penalties for Criminal Possession of Cannabis in the First Degree
Criminal Possession of Cannabis in the First Degree is a Class D felony. The sentence depends on the person’s criminal history and the sentencing provisions applicable to the case.
New York Marihuana Charges: Distribution
New York Penal Law Article 222 also contains several offenses relating to the unlawful sale of cannabis. The level of the offense can depend on the amount and, in some circumstances, the age of the person receiving the cannabis. The principal offenses are:
- Unlawful Sale of Cannabis (PL 222.45);
- Criminal Sale of Cannabis in the Third Degree (PL 222.50 );
- Criminal Sale of Cannabis in the Second Degree (PL 222.55);
- Criminal Sale of Cannabis in the First Degree (PL 222.60); and
- Aggravated Criminal Sale of Cannabis (PL 222.65).
Unlawful Sale of Cannabis (PL 222.45)
Under New York Penal Law 222.45, a person is guilty of Unlawful Sale of Cannabis when the person knowingly and unlawfully sells cannabis or concentrated cannabis.
Penalties for Unlawful Sale of Cannabis
Unlawful Sale of Cannabis is a violation punishable by a fine of not more than $250.
Criminal Sale of Cannabis in the Third Degree (PL 222.50)
Under New York Penal Law 222.50, Criminal Sale of Cannabis in the Third Degree applies when a person:
- Knowingly and unlawfully sells more than 3 ounces of cannabis or more than 24 grams of concentrated cannabis; or
- Being 21 years of age or older, knowingly and unlawfully sells or gives cannabis or concentrated cannabis to a person under 21, subject to the statutory defense and exceptions.
Penalties for Criminal Sale of Cannabis in the Third Degree
Criminal Sale of Cannabis in the Third Degree is a Class A misdemeanor, punishable by up to 364 days in jail. The statute includes a defense to the age-based provision when the defendant was less than three years older than the person under 21 at the time of the offense.
Criminal Sale of Cannabis in the Second Degree (PL 222.55)
Under New York Penal Law 222.55, Criminal Sale of Cannabis in the Second Degree applies when a person:
- Knowingly and unlawfully sells more than 16 ounces of cannabis or more than 5 ounces of concentrated cannabis; or
- Being 21 years of age or older, knowingly and unlawfully sells or gives more than 3 ounces of cannabis or more than 24 grams of concentrated cannabis to a person under 18, subject to statutory exceptions.
Penalties for Criminal Sale of Cannabis in the Second Degree
Criminal Sale of Cannabis in the Second Degree is a Class E felony. The sentencing range depends on the individual’s criminal history and other circumstances.
Criminal Sale of Cannabis in the First Degree (PL 222.60)
Under New York Penal Law 222.60, a person is guilty of Criminal Sale of Cannabis in the First Degree when the person knowingly and unlawfully sells more than 5 pounds of cannabis or more than 2 pounds of concentrated cannabis.
Penalties for Criminal Sale of Cannabis in the First Degree
Criminal Sale of Cannabis in the First Degree is a Class D felony. The sentence depends on the person’s criminal history and the sentencing provisions applicable to the case.
Aggravated Criminal Sale of Cannabis (PL 222.65)
Under New York Penal Law 222.65, a person is guilty of Aggravated Criminal Sale of Cannabis when the person knowingly and unlawfully sells cannabis or concentrated cannabis weighing 100 pounds or more.
Penalties for Aggravated Criminal Sale of Cannabis
Aggravated Criminal Sale of Cannabis is a Class C felony.
How Are Marihuana Investigations Conducted?
New York State Marihuana investigations are generally conducted by local law enforcement, including the NYPD in New York City. Depending on the allegations, an investigation may involve long-term investigations, undercover purchases, observation sales, car stops, or search warrants.
Long Term Investigations
New York Marihuana charges can arise from long-term investigations conducted by law enforcement. Rather than making an arrest immediately after an alleged sale to an undercover officer or confidential informant, investigators may continue gathering evidence concerning alleged transactions and quantities. Some long-term investigations may involve wiretaps, electronic evidence, surveillance, or search warrants.
Marihuana “Buy and Busts”
Short-term Marihuana investigations can involve an undercover officer approaching a person and attempting to purchase cannabis. If police believe an unlawful sale occurred, the investigation may lead to sale and possession allegations depending on the evidence and amount involved.
Observation Sales
An observation sale occurs when police officers believe they have observed an unlawful cannabis transaction. Whether either participant may be charged depends on the facts, including the amount involved, whether compensation was exchanged, the ages of the participants, and whether the conduct was otherwise lawful under Article 222.
Car Stops
Police may stop a vehicle when they have a lawful basis to do so, such as an observed traffic violation. If an officer asks for consent to search the vehicle, a person is not required to consent. New York law also limits the use of cannabis odor and lawful cannabis possession as a basis for searches. The odor of cannabis or burnt cannabis, by itself or together with other circumstances listed in Penal Law 222.05, generally cannot establish reasonable cause that a crime has occurred. Different rules apply when police are investigating impaired driving, although even then the odor of burnt cannabis does not by itself provide probable cause to search areas of the vehicle not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver’s condition.
Search Warrants
Long-term investigations or information from an informant may lead police to apply for a search warrant for a home, business, storage location, phone, or other place or item. A search warrant generally authorizes law enforcement to search the places or items described in the warrant for specified evidence. The fact that a person is present where cannabis is found does not automatically establish knowing possession; possession must be proven under the applicable law and facts.
Common Defenses to New York Marihuana Charges
Potential defenses to New York Marihuana charges depend on the facts and may include:
- lawful possession or transfer of cannabis under Penal Law Article 222;
- lack of knowing possession or insufficient proof connecting the accused to the cannabis;
- an unlawful vehicle stop, detention, search, or seizure;
- improper reliance on cannabis odor or other conduct that New York law says cannot, by itself, establish reasonable cause; and
- defects in a search warrant, warrant application, or execution of the warrant.
Contact an Experienced New York Marihuana Charges Attorney
If you or a loved one is facing charges related to marihuana in New York State, it is crucial to seek the help of an experienced attorney. With the recent changes in marijuana regulation and laws, it is important to have someone on your side who understands the complexities of these cases and how they may affect your criminal record.
An experienced attorney can assess your case and determine potential defenses that may be applicable. They can also help navigate the legal system and fight for your rights throughout the process. Don’t hesitate to call us at 212-729-9494 or contact us online for a consultation to discuss your case today.
Our team of skilled attorneys at Fast Law PC has extensive experience handling New York Marihuana Charges cases and can provide you with some of the best legal representation you can find. We understand the impact that a criminal conviction can have on your life, and we are dedicated to fighting for your rights and helping you achieve the most ideal outcome for your case. Don’t face these charges alone. Contact us today!