Marijuana is Still Illegal in NYC
by John Brosnan and Lance Fletcher, NYC Criminal Defense Attorneys
Despite the decriminalization of marijuana, and legalization in some states, marijuana is still illegal to possess in New York City. There has been recent legislation that legalized medicinal marijuana, but other than this exception you will be arrested if you are caught possessing marijuana. Marijuana can be charged as a violation or a misdemeanor, which would result in you having a permanent criminal record.
You can be convicted of Unlawful Possession of Marijuana (P.L. 221.05) when you knowingly and unlawfully possess marijuana. This definition has several elements that have specific meanings. Knowingly means that you actually have knowledge that you are in possession of marijuana. Your knowledge of its legality or illegality is irrelevant. The prosecutor must show that you knew you had marijuana. It would therefore be a defense if your attorney could show that you that you did not know the marijuana was present, or that you did not know the substance was marijuana.
Unlawfully possess means either to have physical possession or “dominion and control” over the marijuana. Having “dominion and control” over property is called constructive possession and it is a legal theory how multiple people can possess a single piece of property. Therefore, it is not enough to simply show that at the time of arrest the marijuana was not physically in your possession. Your attorney could argue that you did not have the right or ability to exert control of the marijuana. While the prosecutor must also prove you possessed the marijuana unlawfully, the only way to lawfully possess marijuana in New York is if it is prescribed medicinal marijuana.
Finally, the last element that must be proven in order to convict you of marijuana possession is that the substance is actually marijuana. Therefore, even if you believed you possessed marijuana you cannot be convicted if the substance is not marijuana. A lab test will show the results as to whether or not the alleged substance is marijuana and your attorney could argue for a dismissal if the police did not test the alleged marijuana.
Unlawful Possession of Marijuana is a violation under the penal law. It is punishable by a fine of up to $100 and a court surcharge of up to $120.
Criminal Possession of Marijuana. Marijuana can be charged criminally also, which will result in more serious sentences. Marijuana becomes a criminal charge when you possess it in public view or over 25 grams. Possession in public view is a class B misdemeanor in New York City. If your possession is based on weight, the criminal classification you are charged with will depend on the weight of marijuana you possess. Possessing marijuana in public view or between 25 grams and 2 ouncesis a class B misdemeanor punishable by up to 90 days in jail. Possessing between 2 and 8 ounces is a class A misdemeanor punishable by up to a year in jail. Possessing between 8 ounces and 1 pound of marijuana is a class E felony punishable by up to 1 ½ years in prison. Possessing over a pound of marijuana is a class D felony punishable by up to 2 ½ years in prison. The highest criminal class of marijuana possession is a class C felony which occurs when you possess over 10 pounds of marijuana. You can face up to 5 ½ years in prison.
While forcing the prosecutor to prove the case against you beyond a reasonable doubt and contesting each element is always an available defense to any charge, a common way to defend a marijuana conviction is before the trial stage. Unless the police officer personally sees you in public with marijuana, there needs to be a legal basis for the police searching and seizing marijuana. Even if the officer allegedly saw you with it, an illegal search may weaken the prosecutor's case. If the search or seizure was improper, the marijuana can be suppressed at a hearing and your attorney could argue for dismissal.
A common defense strategy is to consider your eligibility for an an adjournment in contemplation of dismissal (CPL 170.56) which is an application for the dismissal of your marijuana case for certain people who are being arrested or charged for the first time in any state. This application is made by your attorney and if granted by the judge, it would cause your case to be dismissed a year after the date it is granted. During the one year delay, you could have a pending criminal charge, the consequences of which should be reviewed by your attorney. Although an adjournment in contemplation of dismissal is a common strategy by New York criminal attorneys, it is not guaranteed by law and may not be a suitable outcome for everyone. Some judges will refuse to be persuaded by your attorney's application, even if you qualify and in other situations an adjournment in contemplation of dismissal may interfere with your ability to resume your life as usual.
Whether or not you are being arrested for marjuana possession for the first time, be prepared to evaluate your options to determine the best outcome for you. Although still illegal, marijuana possession charges can be successfully resolved by fighting the case or successfully applying for an adjournment in contemplation of dismissal.