New York Penal Law Sections 221.40 & 221:35: Misdemeanor Marijuana (Marihuana) Sales

Unlike selling drugs or a controlled substance such as cocaine or heroin (New York Penal Law 220.39), selling marijuana (marihuana) in New York carries a significantly less punishment. Pursuant to New York Penal Law section 221.40, Criminal Sale of Marijuana (Marihuana) in the Fourth Degree, a person is guilty of this crime if they knowingly and unlawfully sell marijuana. A fairly straight forward offense, Criminal Sale of Marijuana is an “A” misdemeanor punishable by up to one year in jail.

An interesting question is whether or not the weight of the marijuana is relevant to New York Penal Law 221.40. While weight of the marijuana is an element that must be proven beyond a reasonable doubt in felony marijuana sales, as long as the prosecution proves that the accused sold the marijuana for “consideration,” ie, money or for something in return, then weight does not matter. See People v. Childs, 40 A.D.3d 270 (1st Dept. 2007). Again, weight is relevant to felony sales, but as long as there was an exchange for consideration, weight has not impact on the charge of Criminal Sale of Marihuana in the Fourth Degree.

Having said that, weight is an element of a Criminal Sale of Marijuana in the Fifth Degree (New York Penal Law 221.35). Criminal Sale of Marijuana in the Fifth Degree requires that a person “knowingly and unlawfully sells, without consideration, one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of two grams or less; or one cigarette containing marihuana.” A “B” misdemeanor, this crime is punishable by up to 90 days in jail.

The difference between the statutes is clear. If you sell marijuana for money in return, then you will be charged with NY PL 221.40. This is true even if the weight is insignificant. On the other hand, if you sell marijuana without consideration and the weight is two grams or less or you sell only one “joint,” then the lesser NY PL 221.35 would be charged. Again, even if there is no consideration, if you sell more than two grams or more than one “joint” the “A” misdemeanor is the proper charge.

Like the sale of marijuana, possession of the same is impacted by numerous factors. In fact, possession not in public may not be a crime at all. Weight too factors into the potential offense. While this entry will not deal with marijuana possession charges such as Criminal Possession of Marijuana (NY PL 221.10) and Unlawful Possession of Marijuana (NY PL 221.05), know that the weight of the contraband, whether it is burning or in public view and other factors will influence the potential charge.

For further information on New York drug laws and crimes, follow the highlighted link to Saland Law PC’s website. Additional information on drug and marijuana crimes as well as other statutes, legal decisions and cases in the press, please review the New York Criminal Lawyer Blog.

Saland Law PC was founded by two former Manhattan Assistant District Attorneys and represents clients throughout the New York City area.

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