Arrests for Marijuana Possession in New York: Understanding the Difference Between a Criminal and Non-Criminal Offense

Although wrongfully classified by many people as a narcotic drug crime, arrests in New York City and throughout the State of New York for possession of a marijuana (or marihuana as it is referred to in the New York Penal Law) are a distinct and separate category of crime. Criminal Possession of a Controlled Substance crimes, unlike Criminal and Unlawful Possession of Marijuana, are much more broad as they include an enormous spectrum of drugs ranging from cocaine to heroin and more “trendy” contraband such as ecstasy. Regardless of the drug, if you possess one of these substances you would be charged with Seventh Degree Criminal Possession of a Controlled Substance (New York Penal Law 220.03) as long as you lacked the intent to sell the substance and the weight was not classified as felonious. It makes no difference if the drug is in your hand and open to public view or buried in your pocket. Just ask any person arrested outside a Phish concert at MSG in Manhattan or at a Disco Biscuits concert right around the corner.

Unlike controlled substances, marihuana crimes in New York (or more correctly the crimes for which you are arrested and charged) relate directly to how you possess the contraband.Obviously, weight is relevant when ascertaining if the crime is a felony or misdemeanor, but the vast majority of offenses are defined by how the marijuana is possessed.

Pursuant to New York Penal Law 221.10, you are guilty of Criminal Possession of Marihuana if and when you possess marihuana in a public place. Additionally, that marijuana must be open to public view or burning. The significance of NY PL 221.10(a) is that if you possess the marijuana in your home (we are talking a total weight that does not exceed twenty-five grams), this crime would not be a proper arrest charge. While you would likely be arrested and given a Desk Appearance Ticket for PL 221.10 if you were smoking a bowl or a joint outside a bar, what if the marihuana never left your pocket or was in a book bag in the back of your car?

Again, assuming their were no weight issues, the proper police action in these circumstances would be an arrest for New York Penal Law 221.05, Unlawful Possession of Marihuana. Unlike its misdemeanor brother, NY PL 221.05 is not a crime. Even if you were convicted, you would not have a criminal record for your PL 221.05 arrest. Instead, you would be guilty of Unlawful Possession of Marijuana if you knowingly and unlawfully possessed Mr. Green Leaves.

One of the problems in the way that these crimes (actually these offenses since only PL 221.10 is a crime) are prosecuted is as follows. You are stopped by the police and subsequently asked to empty your pockets or asked whether you “have anything you that shouldn’t have.” Upon doing so, you take marihuana from your pocket or sock. Now, that marijuana is open to public view. Hmmmm….which is the appropriate charge? The criminal offense or the violation? The answer is clear (although it is not always adhered to by the police). The police should charge you with the violation of NY PL 221.05. The only reason the marihuana was open to public view at any juncture was because the police asked you to expose the contraband.

Regardless of whether you are charged with Criminal Possession of Marihuana or Unlawful Possession of Marihuana, your goal is the same. That is, you and your criminal lawyer should pursue a Marihuana ACD that will ultimately result in the dismissal of the case (for a first time offender). The collateral implications outside the criminal case of being charged with a crime instead of a violation is entirely another matter addressed in other blog entries.

To learn more about New York crimes involving marihuana or controlled substances, please follow the links found throughout this entry. Additional information ranging from analysis of legal decisions to criminal statutes is available through the websites and blogs listed below.

A New York criminal defense firm representing clients in New York City marihuana and controlled substance arrests and Desk Appearance Tickets, the founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office prior to starting the firm.

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