NY Criminal Defense – Penal Law Section 221.10: Criminal Possession of Marijuana / Marihuana in a Public Place

One of the more common crimes NY criminal attorneys deal with is Criminal Possession of Marihuana / Marijuana in the 5th Degree, a class “B” misdemeanor pursuant to NY Penal Law Section 221.10(1). A person is guilty of this charge if he or she “knowingly and unlawfully possesses marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view.”

Although the charge seems straightforward, if you possess a “blunt,” “joint,” or burning marijuana in public you are potentially guilty of this offense. However, before you throw your hands up in the air and plead guilty to this crime, you should consult with a knowledgeable New York criminal defense lawyer who can analyze elements of your case that you may have overlooked.

One of those elements that is critical is whether or not the marijuana was in a public place. If it was not, then your case may be dismissed. According to Section 240.00 of the Penal Law, a public place is defined as “a place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.”

Unlike matters of public lewdness where “public place” has a more narrow definition tailored for that specific crime, “public place” in connection with Criminal Possession of Marihuana has a much more broad meaning. See People v. Guzman, 6 Misc 3d 553 (Crim Ct, NY County 2004). In fact, Justice Elisa S. Koenderman of the New York County (Manhattan) Criminal Court issued a decision on July 10,2008 in People v. Ronnie Watkins where she recognized the broad view the courts accept in connection with the possession of marijuana in a “public place.” In her decision to deny dismissal of a criminal court complaint for facial insufficiency where the defendant’s counsel argued that the inside of the defendant’s vehicle was not a “public place,” Justice Koenderman stated that:

“[the] application of the broad definition of public place to Criminal Possession of Marijuana in the Fifth Degree is consistent with the legislative intent of the statute. Unlike the narrower definition applicable to public lewdness, the “broad definition” of public place under PL ´ŻĄ240.00 (1) encompasses the interior of a car parked on a street to which the public has access, regardless of whether the objective circumstances establish that the interior can, and likely would, be seen to the casual passerby.”

Furthermore, Justice Koenderman recognized that the essence of a “public place” is that it is possible that a member if the public may pass by it. See People v. McNamara 78 NY2d 626, 633 (1991). As a result, all that is required for the interior of car to constitute a public place as an element of Criminal Possession of Marihuana in the Fifth Degree is mere public access to the street where it is parked.

Although it is clear that “public place” is likely to be construed to include areas where you might think are private locations such as the inside of a vehicle, the marijuana must also be burning for your possession to constitute the misdemeanor charge of Criminal Possession of Marijuana in the 5th Degree. If the prosecution fails to set forth one or both elements, the “public place” and the burning, your NY criminal attorney should file a motion to have the complaint against you dismissed.

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