New York Marihuana charges are found in Article 221 of the New York Penal Code. If you are arrested with a small amount of marihuana in New York, you may be receiving a pink ticket, which is punishable by a fine. Possession of larger quantities, distribution, or cultivation of marihuana are prosecuted in New York Criminal Court and can be punishable by jail time.

New York Marihuana Charges: Violations

Marihuana is still illegal in New York. However, effective August 28, 2019, possession of small amounts of marihuana is a violation, rather than a criminal offense. Specifically, under new legislation, it is now a violation (and not a crime) to:

  • Unlawfully possess marihuana (Penal Law Section 221.05) ; and
  • Unlawfully possess marihuana, weighing 1 to 2 oz (Penal Law Section 221.10).

Unlawful possession of marihuana is punishable by a fine of up to $50. Unlawful possession 1 to 2 ounces of marihuana is punishable by a fine of no more than $200.

New York Marihuana Charges: Possession

There are four different New York Marihuana charges relating to possession. Specifically, they are:

  • Criminal Possession of the Marihuana in the Fourth Degree;
  • Criminal Possession of the Marihuana in the Third Degree;
  • Criminal Possession of Marihuana in the Second Degree; AND
  • Criminal Possession of Marihuana in the First Degree.

Criminal Possession of Marihuana in the Fourth Degree (PL 221.15)

Under New York Penal Law 221.15, a person is guilty of Criminal Possession of Marihuana in the Fourth Degree when he:

  1. Knowingly and unlawfully,
  2. Possesses marihuana,
  3. Which has an aggregate weight of more than 2 ounces.  

Penalties for Criminal Possession of Marihuana in the Fourth Degree

Criminal Possession of Marihuana in the Fourth Degree is a class A misdemeanor. Therefore, it is punishable by up to one year in jail. Practically speaking, most CPM 4 cases resolve themselves with a non-criminal disposition and without any jail time.

Criminal Possession of Marihuana in the Third Degree (PL 221.20)

Under New York Penal Law 221.20, a person is guilty of Criminal Possession of Marihuana in the Third Degree when he:

  1. Knowingly and unlawfully,
  2. Possesses marihuana,
  3. Which has an aggregate weight of more than 8 ounces.

Penalties for Criminal Possession of Marihuana in the Third Degree

Criminal Possession of Marihuana in the Third Degree is a Class E felony. In New York, the sentencing ranges on felonies depend on the individual’s prior felony convictions. The sentencing options differ for individuals (1) with no prior felony convictions, (2) a non-violent felony conviction and (3) a violent felony conviction.

ny violent and non-violent felonies explained
No Prior Felony Convictions and Criminal Possession of Marihuana in the Third Degree

For an individual with no prior felony convictions, New York Criminal Possession of Marihuana in the Third Degree is punishable by 1 to 1.5 years in prison, followed by 1 year of post release supervision. Additionally,

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year is permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into drug treatment court is permitted.
Prior Non-Violent Felony Conviction and Criminal Possession of Marihuana in the Third Degree

If an individual has a prior conviction for a non-violent felony, then Criminal Possession of Marihuana in the Third Degree is punishable by 1.5 to 2 years in prison, followed by 1 to 2 years of post release supervision. Additionally,

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year is permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case into Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Possession of Marihuana in the Third Degree

If an individual has a prior conviction for a violent felony, then Criminal Possession of Marihuana in the Third Degree is punishable by 2 to 2.5 years in prison, followed by 1 to 2 years post release supervision. Furthermore,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case into a Drug Treatment Program is not permitted.

Criminal Possession of Marihuana in the Second Degree (PL 221.25)

Under New York Penal Law Section 221.15, a  A person is guilty of Criminal Possession of Marihuana in the Second Degree when he:

  1. Knowingly and unlawfully possesses marihuana;
  2. Which has an aggregate weight of more than 16 ounces.

Penalties for Criminal Possession of Marihuana in the Second Degree

Criminal possession of marihuana in the second degree is a Class D felony. Once again, the sentencing range depends on the individual’s prior criminal history.

No Prior Felony Convictions and Criminal Possession of Marihuana in the Second Degree

Without any prior felony convictions, Criminal Possession of Marihuana in the Second Degree is punishable by 1 to 2.5 years in prison, followed by 1 year post release supervision. Furthermore,

  • Probation is permitted;
  • When there are mitigating circumstances, an Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case into Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Possession of Marihuana in the Second Degree

For individuals with a prior non-violent felony conviction, Criminal Possession of Marihuana in the Second Degree is punishable by 1.5 to 4 years in prison followed by 1 to 2 years post release supervision. Additionally,

  • Probation is permitted;
  • If there are mitigating circumstances, an Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case into Drug Court is permitted.
Prior Violent Felony Conviction and Criminal Possession of Marihuana in the Second Degree

Criminal Possession of Marihuana in the Second Degree with a prior violent felony conviction is punishable by 2.5 to 4.5 years in prison, followed by 1 year of post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion is not permitted.

Criminal Possession of Marihuana in the First Degree (PL 221.30)

A person is guilty of criminal possession of marihuana in the first degree when he knowingly and unlawfully possesses 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 ten pounds.

Penalties for Criminal Possession of Marihuana in the First Degree

Criminal possession of marihuana in the first degree is a class C felony.

No Prior Felony Convictions and Criminal Possession of Marihuana in the First Degree

In situations where the individual does not have any prior felony convictions, Criminal Possession of Marihuana in the First Degree is punishable by 1 to 5.5 years in prison, followed by 1 to 2 years post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted when there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Possession of Marihuana in the First Degree

Criminal Possession of Marihuana in the First Degree with a prior non-violent felony conviction is punishable by 1.5 to 8 years, followed by 1.5 to 3 years post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Possession of Marihuana in the First Degree

Criminal Possession of Marihuana in the First Degree with a prior violent felony conviction is punishable by 3.5 to 9 years in prison, which is followed by 1.5 to 3 years post release supervision. Furthermore,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • Shock Incarceration is permitted;
  • Judicial Diversion into Drug Court is not permitted.

New York Marihuana Charges: Distribution

Similarly to possession charges, there are five different charges relating to the Sale of Marihuana. The difference in these charges generally depends on the weight of marihuana. Specifically, the five New York Marihuana Distribution Charges are:

  • Criminal Sale of Marihuana in the Fifth Degree
  • Criminal Sale of Marihuana in the Fourth Degree
  • Criminal Sale of Marihuana in the Third Degree
  • Criminal Sale of Marihuana in the Second Degree
  • Criminal Sale of Marihuana in the First Degree

Criminal Sale of Marihuana in the Fifth Degree (PL 221.35)

Under New York Penal Law 221.35, a person is guilty of Criminal Sale of Marihuana in the Fifth Degree when he:

  1. Knowingly and unlawfully sells,
  2. Without consideration,
  3. Marihuana of an aggregate weight of two grams or less; or one cigarette containing marihuana.

Penalties for Criminal Sale of Marihuana in the Fifth Degree

Criminal Sale of Marihuana in the Fifth Degree is a class B misdemeanor. That means this charge is punishable by up to 60 days in jail. Practically speaking, however, these charges resolve themselves without any jail time. Sometimes, it’s possible to negotiate a non-criminal disposition on the matter, such as a violation or an Adjournment in Contemplation of Dismissal (called “ACD” or “ACOD” depending on the county).

Criminal Sale of Marihuana in the Fourth Degree (PL 221.40)

Under New York Penal Law Section 221.35, a person is guilty of Criminal Sale of Marihuana in the Fourth Degree when he knowingly and unlawfully sells marihuana except as provided in section 221.35 of Article 221 (Criminal Sale of Marihuana in the Fifth Degree).

This means that sales of more than two grams or marihuana and more than one cigarette for something of value would be considered Criminal Sale of Marihuana in the Fourth Degree.

Penalties for Criminal Sale of Marihuana in the Fourth Degree

Under New York Law, Criminal Sale of Marihuana in the Fourth Degree is a Class A misdemeanor. As such, it is punishable by up to a year in jail. Practically speaking, however, these types of cases usually resolve themselves without any jail time. Based on the facts of the case, we may be able to negotiate a non-criminal disposition on your case such as an ACD or a violation.

Criminal Sale of Marihuana in the Third Degree (PL 221.45)

Under New York Penal Law 221.45, a person is guilty of Criminal Sale of Marihuana in the Third Degree when he knowingly and unlawfully sell:

  1. Marihuana of an aggregate weight of more than twenty-five grams.

Penalties for Criminal Sale of Marihuana in the Third Degree

Criminal Sale of Marihuana in the Third Degree is a class E felony. Similarly to other New York felonies, the sentencing range depends on the individual’s prior criminal history. Such as whether the person has within the past 10 years been convicted of a felony and whether that felony is characterized as “violent” or “non-violent” under New York law.

No Prior Felony Convictions and Criminal Sale of Marihuana in the Third Degree

For individuals without any prior felony convictions, Criminal Sale of Marihuana in the Third Degree is punishable by 1 to 1.5 years in prison followed by 1 year of post release supervision. Additionally, for this charge without a prior felony conviction:

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year is permitted if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of case into Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of Marihuana in the Third Degree

For individuals with a prior non-violent felony conviction, Criminal Sale of Marihuana in the Third Degree is punishable by 1.5 to 2 years in prison followed by 1 to 2 years post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year is permitted in cases with mitigating cirumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of Marihuana in the Third Degree

For individuals with prior violent felony convictions, Criminal Sale of Marihuana in the Third Degree is punishable by 2 to 2.5 years in prison, followed by 1 to 2 years post release supervision. Furthermore,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into Drug Treatment Court is not permitted.

Criminal Sale of Marihuana in the Second Degree (PL 221.50)

Under New York Penal Law 221.50, a person is guilty of Criminal Sale of Marihuana in the Second Degree, when he knowingly and unlawfully:

  1. Sells marihuana of an aggregate weight of more than four ounces, OR
  2. Sells marihuana to a person less than 18 years of age.

Penalties for Criminal Sale of Marihuana in the Second Degree

Criminal Sale of Marihuana in the Second Degree is a Class D felony.

No Prior Felony Convictions and Criminal Sale of Marihuana in the Second Degree

For individuals without prior felony convictions, Criminal Sale of Marihuana in the Second Degree is punishable by 1 to 2.5 years in prison, followed by 1 year post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of Marihuana in the Second Degree

If someone if a non-violent felony predicate, then Criminal Sale of Marihuana in the Second Degree is punishable by 1.5 to 4 years in prison, followed by 1 to 2 years post release supervision. Furthermore,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case to Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of Marihuana in the Second Degree

For individuals with a prior violent felony conviction, Criminal Sale of Marihuana in the Second Degree is punishable by 2.5 to 4.5 years in prison followed by 1 year post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion into Drug Treatment Court is not permitted.

Criminal Sale of Marihuana in the First Degree (PL 221.55)

Under New York Penal Law Section 221.55, a person is guilty of Criminal Sale of Marihuana in the First Degree when he knowingly and unlawfully:

  1. Sells marihuana of aggregate weight of more than sixteen ounces.

Penalties for Criminal Sale of Marihuana in the First Degree

Criminal sale of marihuana in the first degree is a class C felony.

No Prior Convictions and Criminal Sale of Marihuana in the First Degree

This charge, without any prior felony convictions is punishable by 1 to 5.5 years in prison followed by 1 to 2 years post release supervision. However,

  • Probation is a permitted sentence;
  • An Alternative Definite Sentence of 1 year or less is permitted when there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the matter to Drug Treatment Court is permitted.
Prior Non-Violent Felony Conviction and Criminal Sale of Marihuana in the First Degree

With a prior non-violent felony, Criminal Sale of Marihuana in the First Degree is punishable by 1.5 to 8 years in prison, followed by 1.5 to 3 years post release supervision. Additionally,

  • Probation is permitted;
  • An Alternative Definite Sentence of 1 year or less is permitted, if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case to Drug Treatment Court is permitted.
Prior Violent Felony Conviction and Criminal Sale of Marihuana in the First Degree

Criminal Sale of Marihuana in the First Degree with a prior violent felony conviction is punishable by 3.5 to 9 years in prison, followed by 1.5 to 3 years post release supervision. Additionally,

  • Probation is not permitted;
  • An Alternative Definite Sentence is not permitted, even if there are mitigating circumstances;
  • Youthful Offender (“YO”) Adjudication is not permitted;
  • A Parole Supervision sentence is not permitted;
  • SHOCK is permitted;
  • Judicial Diversion of the case into Drug Treatment Court is not permitted.

How Are Marihuana Investigations Conducted?

New York State Marijuana investigations are generally conducted by the local police department, or NYPD in New York City. Police Marihuana Investigations can divided into five categories: Long Term Investigations, “Buy and Busts,” Observation Sales, Car Stops, Search Warrants.

Long Term Investigations

New York Marihuana Charges sometimes involve long term investigations conducted by the police department. Rather than arrest someone on the spot after a drug sale to an undercover or a confidential informant, the police keep gathering evidence, and aggregating the quantity of drugs sold. Long term investigations usually involve wire taps as well as search warrants.

Marihuana “Buy and Busts”

These short-term marihuana investigations involve an undercover officer approaching individuals on the street asking to buy marihuana. Once the sale is complete, the seller is charged with the sale and the possession of marihuana.

Observation Sales

An observation sale happens when police officers observe individuals engaged in a marihuana sale. If both people are apprehended by the police, the seller will be charged with a marihuana sale and possession, while the buyer will be charged with marihuana possession only.

Car Stops

Based on the observation of a traffic violation, or on a tip from a confidential informant, the police are able to stop a car and conduct a search of the vehicle. Importantly, if you are asked to consent to the search of the vehicle, you do not have to agree. If marihuana is found within the car, occupants of the vehicle may be arrested or receive a DAT. Where the marihuana is found will determine who will be arrested, as there is no constructive possession for marihuana inside a car.

Search Warrants

Long term investigations or information from a confidential informant may lead to the execution of a search warrant on someone’s house or place of business. A search warrant is permission from the Court to search a place, such as someone’s house, place of business or a storage facility. Individuals that are inside the location where marihuana is found, as well as the target of the search warrant can be charged with possession of marihuana.

Common Defenses to New York Marihuana Charges

Common defenses to New York Marihuana Charges are:

  • legal possession of marihuana, such as for medicinal use;
  • improper conduct by the police, such as improper stop and search of the car;
  • issues with the search warrant or the search warrant affidavit.

Contact an Experienced New York Marihuana Charges Attorney

If you have been arrested or suspect that you are under an investigation by local, state of federal authorities, please call us at 212-729-9194 or contact us today to schedule a consultation to see if your conviction qualifies.