When the Marijuana Regulation and Taxation Act, or MRTA, becomes the law of New York State, the legalization of marijuana, or marihuana as previously written in the Penal Law, will usher in many changes to the criminal law. From establishing the New York State Cannabis Control Board and the Office of Cannabis Management, to memorializing who and how one can lawfully possess, plant, and sell, cannabis, the MRTA will set the course for the future all things cannabis. In terms of the criminal law, as Article 221 is reduced to a shell of its former self and is somewhat replaced by the new Penal Law Article 222, prosecutors, criminal defense attorneys, and both residents in and visitors to the Empire State will find themselves under the thumb of a new code criminalizing the illegal possession and sale of cannabis while also setting the parameters for the lawful production and distribution of the same. Before addressing these new crimes, however, it is critical to first have a basic working knowledge of some concepts and definitions found in the law.
Important Definitions: Penal Law 222.00
Not a complete verbatim definition, “cannabis” includes all parts of the plant from its seeds and resin to every compound, derivative, and preparation of the plant. The exception to this definition is the mature stalks of the plant, fiber produced from those stalks, oil created from its seeds, sterilized seeds incapable of germination, and hemp. “Concentrated cannabis” is defined as the resin that is separated from the plant or any compound or substance that contains more than three percent by weight of cannabinol or other substances.
It is worthwhile to note that for the purpose of Article 222 statutes, “sell” does have its generally understood meaning of exchanging something for money or other compensation. However, a sale does not occur when a person 21 years of age or older gives either cannabis or concentrated cannabis to another legally aged person in a lawful quantity without compensation.
Personal Use of Cannabis: Penal Law 222.05
Assuming you are at least 21 years of age, it is legal to possess, transport, or display no greater than three ounces of cannabis, twenty-four grams of concentrated cannabis, or their respective paraphernalia. Similarly, as long as you are not compensated and you are of age, you can transfer, aka, give to another lawfully aged person, this same amount. Additionally, assuming you do not violate another law, not only is it permissible to smoke or ingest either substance, if you are compliant with Penal Law 222.15 you can also plant and process cultivated cannabis.
Unlike the way it is treated with other drugs, cannabis, concentrated cannabis, and related paraphernalia used or possessed in a manner consistent with the law are not considered contraband nor subject to seizure or forfeiture. Arguably more important, behavior deemed legal under this statute in no way can establish the basis for the police to approach, search, seize, arrest, or even detain a person. In fact, other than when the police are investigating operation of a vehicle while impaired by drugs, no finding of reasonable cause to believe a crime has been perpetrated can be found entirely on evidence of the smell of fresh or burnt cannabis, possession of a lawful amount of these substances, or the presence of cash in proximity to the cannabis. Taking this a step further, in situations where the police are investigating a DWAI or DWI based on drugs or a combination of alcohol and drugs respectively, the aroma of burnt cannabis cannot establish probable cause to search a vehicle beyond the area not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver’s condition.
Restrictions on Cannabis Use: Penal Law 222.10
In the simplest of terms, you cannot generally smoke, vape, or ingest either substance on school grounds or in a school bus. However, if you do the consequences are fairly insignificant and allow for a civil fine not more than $25.00 or community service for a duration not exceeding twenty-four hours.
Personal Cultivation and at Home Possession of Cannabis: Penal Law 222.15
Barring certain exceptions authorizing the same, whether at a private residence or elsewhere, it is unlawful to plant, process, or possess more than three mature and three immature cannabis plants at the same time. In total, you cannot do the same for more than six mature and immature cannabis plants at your private residence at any time. Assuming you are compliant with the law, you must also take the steps to secure the cannabis plants and keep them from those twenty-one years of age or younger. While no one less than twenty-one years old can possess, process, or plant cannabis at all, local governments cannot completely prohibit that which the law allows. These municipalities and the larger counties can establish civil penalties no greater than $250 for violating the law.
This section of the code also creates the Office of Cannabis Management which will issue regulations and enforce the rules for home cultivation of cannabis.
Cannabis Licensing and Distribution: Penal Law 222.20
Although fairly obvious, it is a defense to a prosecution for violating Article 222 or a local law if an accused did so in a manner compliant with the law.
Cannabis Violations, Offenses, and Crimes
Only a cursory view of the foundational statutes of Article 222 and the forthcoming cannabis laws, these partial definitions and the information provided will shed light on the violations and crimes that are soon to become part of New York’s criminal code. A brief analysis of those new misdemeanors and felonies will be forthcoming in the days to come.
To learn more about New York’s drug and cannabis crimes, review Crotty Saland PC’s website and our blog, the NewYorkCriminalLawyer-Blog.Com. Crotty Saland PC is a New York criminal defense law firm founded by two former Manhattan prosecutors.