Marijuana Possession Cases
(P.L. 221.10, 221.05 - OLD LAW)
Subject to certain criterial, possession of recreational marijuana is legal in New York - but not under federal law)
The Arrest. Being arrested can be confusing, shocking, embarrassing, and physically unpleasant. The arresting officer might have been in uniform or in plain clothing. Initially, you may have been searched and handcuffed without having been read your Miranda rights or told what you've been charged with. During the booking process you may have been denied access to a phone to call a lawyer or loved ones. Next, you may have been photographed, fingerprinted, and given an appearance ticket, still without having been able to voice your side of the story or gather very much information about what will happen in court.
Post Arrest. Following arrest, you may lose your job, suffer suspension of a professional license, experience immigration or international travel problems, and face other immediate hardships before ever setting foot in a courtroom. This is not to mention the emotional turmoil that a criminal accusation can bring. A jail sentence is still a permissible punishment upon conviction for possessing even a small amount of marijuana and even if it's your first arrest. Even if jail is not being threatened, a marijuana conviction may endanger employment prospects, immigration status, or could even lead to denial of certain governmental benefits or licenses. With so much at stake, be sure to consult with a competent New York City Criminal Defense Attorney before going to court.
What does it mean to be charged with “marijuana possession” in New York City?
Possession of small amounts of marijuana may result in being charged under P.L. § 221.10 if the marijuana is open to public view or P.L. § 221.05 if the marijuana possession is not open to public view.
P.L. § 221.05 - Unlawful Possession of Marihuana
A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana
P.L. § 221.10 - Criminal Possession of Marihuana in the 5th Degree
A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses: marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams.
What will happen in court?
The first court date is designed for you and your attorney to appear and be informed about the nature of the charges, given additional paperwork, and possibly enter a plea. If your case is not resolved, you will be given another court date. New York City Criminal Defense Attorney Lance Fletcher has handled numerous criminal court arraignments and is prepared successfully handle your arraignment.
How is possession proved?
The prosecution may argue that you're in possession if you are seen smoking it or if you are otherwise in physical possession. Even if you were not in physical possession, the prosecution may argue that you were in constructive possession of the marijuana. Different defenses apply to different theories of possession, so the facts that establish how you were alleged to be in possession can become very important to mounting a successful defense. If the marijuana is found in your bag, car, or home, the prosecution will argue dominion or control which is a legal, permissible argument. Possession because of dominion or control is the same argument that you possess a TV even without physically holding it.
What can a New York City Criminal Defense Lawyer do to defend a marijuana possession charge?
A lot. At the Law Office of Lance Fletcher, you will receive help and guidance from someone who knows the law. The law provides you with numerous important rights that can greatly affect the outcome of your case. First, there is a question of whether the police properly searched you or your car. Second, the prosecutor has to establish that you were in knowing possession. Generally, you aren't criminally liable for possessing something that you had no idea that you had. Next, there are the factual aspects of your case that vary from case to case. If marijuana was recovered from an area where other people were present (under a couch, on the floor of a car, on a dirty sidewalk), there will be questions about how many people had access to that common area and whether the marijuana could belong to someone else. In New York, you also have the right to prosecution by information which governs the evidence that can be properly admitted against you. You have many other rights which create ways to successfully defend your case. New York City Criminal Defense Lawyer Lance Fletcher can cast doubt on whether you were in knowing possession, challenge the legality of something that the police did, and enforce your rights to fullest extent of the law.
What are the differences between getting a summons versus a desk appearance ticket, both that charge possession of marijuana (221.10 and / or 221.05)?
A desk appearance ticket signals the start of a prosecution by the District Attorney's Office whereas a summons is prosecuted by the court. In either situation, you face the same possible punishment and you have substantially the same rights. It's wise to consult an attorney in either situation.
What penalties are there for possessing a small amount of marijuana if it's the first time I've been arrested?
If you're convicted of possessing less than 2 ounces of marijuana in New York City, you face punishment under a class B misdemeanor as set forth below but the proper charge also depends on the theory of the possession.It's important to retain legal representation because you may be able to avoid a conviction or dramatically minimize these penalties especially if it is your first time being arrested. See our marijuana case results below. Call 212-619-3900 for a Evaluation and confidential consultation.
MARIJUANA RELATED CHARGES AND PENALTIES: (OLD LAW - NO LONGER APPLICABLE)
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ANY WEIGHT |
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P.L. § 221.05 - Unlawful Possession of Marihuana (Violation)
A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana |
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P.L. § 221.10 - Criminal Possession of Marihuana in the 5th Degree
(Misdemeanor)
A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses: 1. marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or 2. one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams. |
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MORE THAN 2 OUNCES |
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P.L. § 221.15 - Unlawful Possession of Marihuana in the 4th Degree
(Misdemeanor)
A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than two ounces. |
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MORE THAN 16 OUNCES |
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P.L. § 221.25 - Criminal Possession of Marihuana in the 2nd Degree (Felony)
A person is guilty of criminal possession of marihuana in the second degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than sixteen ounces. |
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MORE THAN 10 POUNDS |
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P.L. 221.30 - Criminal Possession of Marihuana in the 1st Degree (Felony)
A person is guilty of criminal possession of marihuana in the first degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than ten pounds. |
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A SMALL SAMPLE OF MR. FLETCHER'S RECENT MARIJUANA CASE RESULTS
Reference #222 - Manhattan, NY - Client, an out of state college student, was charged with P.L. 221.1, 221.05 - Undercover police saw client purchase marijuana in Washington Square Park from a dealer who was also arrested - Client admitted having it - Result: All charges dismissed and sealed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment.
Reference #191 - Manhattan, NY - Client, a licenses professional, was a passenger in a car when police approached. A different passenger had some marijuana but my client was also arrested and charged under P.L. 221.10 and 221.05. Result: All charges dismissed and sealed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment.
Reference #171 - Bainbridge, NY - Clients were riding in a car stopped by NYS Police on an interstate highway. Marijuana was recovered from inside the car and all occupants were arrested under P.L. 221.05.Result: All charges dismissed and sealed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment and clients excused from ever appearing in court.
Reference #152 - Brooklyn, NY - Clients were sitting in an illegally parked car. The windows were up and the car was full of smoke. All occupants in the car were arrested under P.L. 221.10 and 221.05 after marijuana was detected and recovered by the police. Result: All charges dismissed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment.
Reference #236 - Queens, NY - Client was seen smoking a marijuana cigarette on a sidewalk and subsequently arrested under P.L. 221.10. Client in the process of applying for a Green Card. Result: All charges dismissed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment, no immigration consequences.
Reference #223 - Kings, NY - Client, a minister and college student was arrested under section 221.10 and 221.05 for smoking marijuana outside. Result: All charges dismissed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment, no educational / federal student loan consequences.
Reference #327 - The Bronx, NY - Client, a teacher, was arrested under P.L. 221.10 and 221.05 because another passenger in his car was smoking marijuana. He was suspended from work immediately pending the outcome of the case. Result: After discussions with the District Attorney, all charges dropped, fingerprint card & arrest photo destroyed, arrest record sealed, client was able to resume work.
Reference #97 - Manhattan, NY - Client, working in the defense industry and possessing a security clearance, was arrested under P.L. 221.10 for smoking a marijuana cigarette during a concert at Madison Square Garden.Result: After discussions with the District Attorney, all charges dropped, fingerprint card & arrest photo destroyed, arrest record sealed, client was able to resume work.
Reference #155 - Manhattan, NY - Client was charged under P.L. 221.10 with possessing a small amount of marijuana. It was not client's first arrest. Result: All charges dismissed, fingerprint card & arrest photo destroyed, arrest record sealed, no fines, no probation, no community service, no court ordered drug treatment, no educational / federal student loan consequences.
Whether your case has started with a desk appearance ticket or a formal arrest, you may feel, that you have limited options. Don't just rely on the fact that “it's just marijuana.” Protect your rights by calling (212) 619-3900 for a Evaluation and confidential consultation. You may be eligible for special treatment if it is your first offense. An arrest for marijuana possession signals the start of a criminal prosecution. Seek immediate help from New York City Marijuana Defense Attorney Lance Fletcher.