NY Criminal Defense: The Differing Consequence of Selling Marijuna (NY Penal Law 221.40) and Other Controlled Substances (NY Penal Law 220.39 and 220.44)

NY Criminal defense attorneys are confronted regularly with the reality that possessing or selling “drugs” can mean vastly different things depending on the substance. The disparity between possessing and selling marijuana and controlled substances such as cocaine, crack and heroin is enormous even though the NYS legislature recently eased the Rockefeller Drug Laws. Clearly, and arguably correctly, the legislature has deemed Criminal Possession or Criminal Sale of Marijuana (“Marihuana” in the statute), pursuant to NY Penal Law sections 221.10 and 221.40, as less dangerous or harmful to public safety than Criminal Sale of a Controlled Substance pursuant to NY Penal Law 220.39 and 220.44.

A great example of this disparity is illustrated in the following scenario. If you are arrested and a small bag of marijuana clearly for personal use is recovered from your pant pocket, you will like face the charge of Unlawful Possession of Marijuna. Baring the amount of marijuana exceeding twenty five grams, a charge of Unlawful Possession of Marijuana is a violation and not a crime. While it is possible to be sentenced up to fifteen days in jail, if it is your first offense you are eligible to receive a Marijuana ACD. If that is the disposition, then in one year the case would be dismissed and sealed assuming you did not get into any further trouble. In the alternative, even if you were convicted of the Unlawful Possession of Marijuana, you would not have a criminal record as a result.

On the other end of the spectrum, if the substance found in your pocket was one tin of heroin or a baggie of cocaine or crack – or even a stem/pipe with residue – you would face the charge of Criminal Possession of a Controlled Substance in the Seventh Degree pursuant to NY Penal Law 220.03. A conviction for this offense would not only result in a misdemeanor, but is punishable by up to one year in jail.

Following each of the statutes into the arena of larger quantities, if you were to possess in excess of ten pounds of marijuana you would face a maximum of fifteen years in state prison. However, the offense, Criminal Possession of Marijuana in the First Degree, does not have a mandatory minimum sentence. Therefore, a judge could, if he or she wished, even sentence you to probation. If you possessed the same quantity of cocaine the crime would be the “A” felony offense of Criminal Possession of a Controlled Substance in the First Degree. Even if you were a first time offender, the minimum sentence you would face would be eight years and the maximum term of imprisonment would be twenty years.

I could list the disparities and the differences between charges involving marijuana and controlled substances in entry after entry. But the point is clear. While possessing or selling marijuana is a serious offense, the same or similar actions involving other drugs is significantly more severe. If you find yourself or a loved one accused of perpetrating such crimes, the best way to avoid compounding a dangerous situation is retaining experienced criminal counsel to guide you through the process and implement the strongest defense available.

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