Possession of Marihuana (Marijuana) In New York City

By Don Murray, Esq.

If someone you care about has been arrested for a marijuana related offense anywhere in New York City, you need to be aware of special differences between marijuana cases and other illegal drug cases.


ALERT -  NYPD Enforcement Rules

In November, 2014, the NYPD began a new policy regarding enforcement of marijuana laws in New York City.  This was NOT a change in the law.  It was simply a change in the way that the NYPD decided to approach certain marijuana charges in certain situations.  They are not looking the other way or refusing to follow the law.  The NYPD is simply taking a different approach to the procedures involved in making accusations, which is in their discretion.  


It is tempting for people to assume that marijuana cases are treated the same as any other illegal drug cases in New York. The truth is however, is that in two important respects, marijuana cases are treated differently from other illegal drugs in New York City.

First, legally, marijuana related offenses are specifically carved out from and identified as separate from "controlled substances". As a technical matter, in fact, marijuana in New York is NOT a controlled substance. This is important because it means that New York's strict laws about possession and sale of controlled substances do not apply to cases involving marijuana. Marijuana related offenses, in New York, have their own special laws with their own offense levels. This does not necessarily mean that New York doesn't care about marijuana or that it isn't serious to be charged with a marijuana related offense. But it does mean that the legislature has not chosen to classify marijuana related offenses at the same level of seriousness as, for example, cocaine related offenses.

The second important respect in which marijuana cases are different from controlled substance related offenses is that, as a general rule, the district attorneys offices, taking the cue from our legislature's distinction between marijuana and controlled substances, are generally more flexible with negotiations in cases involving marijuana than they might be in cases involving cocaine.

Obviously there will be exceptions as the quantity of marijuana involved or the scale of sales involved increases, but generally you are better off trying to negotiate a marijuana case than you are trying to negotiate a cocaine case. This is not to suggest that any of the district attorneys are "soft" on marijuana, but merely to suggest that as between marijuana cases and controlled substance cases, negotiations are likely to go better in the marijuana case.

Marijuana Offenses

The first important distinction that must be made in cases involving marijuana, and indeed ANY illegal drug case, is whether the issue is possession of marijuana or sale of marijuana. As a general rule, possession of marijuana is going to be less serious than sale of marijuana. Of course possession of 500 pounds of marijuana is going to be more serious than the sale of one small bag of marijuana, but you get the idea.

Unlawful Possession of Marijuana (PL Section 221.05)

The least serious marijuana charge there is in New York is called Unlawful Possession of Marijuana and it is found in New York Penal Law Section 221.05.

This section of the law in New York reads very simply, " A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana."

If the quantity of marijuana or circumstances of its possession do not qualify for any other marijuana offense, then the person is guilty of unlawful possession of marijuana. As a practical matter, this section applies to small amounts of marijuana possessed by someone on their person or in their home outside of public view and not burning.

Many people are surprised to learn that unlawful possession of marijuana is not even a crime in New York State. Unlawful possession of marijuana is classified by our legislature as a violation. A violation is the legal equivalent of a traffic ticket.

Unlawful Possession of Marijuana - The Big Secret

There is an interesting side effect to the fact that Unlawful Possession of Marijuana is a violation in New York. This "side effect" applies to any person who is charged with Unlawful Possession of Marijuana and ONLY Unlawful Possession of Marijuana.

General Rule - In any case in which a person is charged with Unlawful Possession of Marijuana and ONLY Unlawful Possession of Marijuana, the case could be subject to a legal motion to dismiss for lack of jurisdiction over the case if the Government fails to have a lab report, field test, or a special sort of affidavit from a police officer.

In order to understand why this is, you have to understand a few things about procedure in criminal cases. It's not terribly complicated but you have to understand a couple of concepts.

First, you need to understand that when you are charged with an offense in New York, the Government is required to prepare a document of some kind or other that is called an "accusatory instrument". This is just a fancy way of describing a piece of paper that says that you did something wrong.

But the Government is required to prepare this "accusatory instrument" according to particular rules. Failure to prepare the accusatory instrument properly can eventually mean that the case the Government wants to bring against someone will be dismissed.

In illegal drug cases, the Government is required to present a laboratory analysis proving that the substance recovered is actually some illegal substance as opposed to ground up aspirin or something legal. When the Government provides this laboratory report to the Court, the accusatory instrument is said to be "corroborated" - a fancy way of saying that the accusation has been independently verified in some way.

In misdemeanor cases the Government has a set period of time to "corroborate" the accusatory instrument. For a B misdemeanor, the Government has 60 days to get the lab report. If the Government fails to get the lab report in 60 days on a B misdemeanor, the case must be dismissed because the accusatory instrument was never "corroborated".

So the question you might be asking yourself now is "If they have 60 days to get the lab report for a B misdemeanor, how long do they have for a VIOLATION, since unlawful possession of marihuana is just a VIOLATION?"

And THAT is an excellent question. And here is the answer:

ZERO DAYS.

The law in New York DOES NOT RECOGNIZE any such thing as an "uncorroborated" violation accusatory instrument. Under New York law, an accusatory instrument that only charges a violation MUST be corroborated. Since the law does not recognize a violation that is not then and there corroborated, the Court has no power to entertain such a case (or to put it in fancier legal terminology, the Court does not have JURISDICTION to hear an uncorroborated violation).

Therefore, uncorroborated violations are subject to dismissal upon appropriate legal motion by your lawyer.

That means that at the moment that you appear in Court on your unlawful possession of marijuana case, the judge better be holding something that is deemed sufficient to corroborate the notion that the substance recovered was in fact marijuana.  Under the law as it currently exists, there are three possibilities.  

First, is the official law report from the police lab.  That is highly unlikely.  Second, is a field test report from a field test kit that some police officers have and use.  This is possible and we are seeing more of these field tests used every day.  Third, and simplest, is an affidavit signed by the police officer that says essentially that he believes it to be marijuana based on his training and experience.

Now your next question might be, "How often will the police have obtained one of these things prior to the appearance in Court?"

And the answer is: Sometimes, but not always.

This means that if you are arrested for unlawful possession of marijuana and ONLY unlawful possession of marijuana, there is a chance that your lawyer will have the opportunity to make a legal motion to get your case outright dismissed.

(Please note that this legal analysis has not traditionally been given much credit in Westchester County.  If you have a UPM case in Westchester County, you may find that the argument to dismiss may not even be made or if it is made, it will be denied.)

Please realize that this applies ONLY to unlawful possession of marihuana. There are more serious marijuana possession offenses called "CRIMINAL possession of marijuana" that are misdemeanor or even felony offenses (depending on the amount of marijuana involved). In misdemeanor or felony marijuana possession cases, the Government is allowed plenty of time (60 days up to 6 months depending on the case) to get the lab report.

Also, if you are charged with other, non-violation offenses, do not expect that ALL charges must be dismissed against you because of the failure of the government to have a laboratory report on the marijuana. The above analysis applies to situations in which the ONLY charge is unlawful possession of marihuana.

Multiple People Charged With Possession of One Joint

One common occurrence in New York City is for the police to arrest multiple people, sometimes as many as five or six, for possessing the same marijuana cigarette. The police will claim to have observed the joint being passed from one person to the next in a crowd, either in a park or in a car near a park. People accused in such circumstances will frequently report that they were not actually smoking but were simply with someone who was and the police simply arrested everyone there.

Marijuana ACD

People who are arrested for marijuana related offenses may be eligible for a special disposition of their cases called a "Marihuana ACD". ACD stands for Adjournment in Contemplation of Dismissal. What it means is that the case is adjourned for 1 year. As long as the person stays out of trouble during that time, the case will be dismissed and sealed. It is not probation and does not involve an admission of guilt.

Search and Seizure Issues

Marijuana cases frequently involve issues of search and seizure. Whether it involves the police searching through a person's pockets on the street, an intrusive search of a car parked on the side of the road, or the execution of a search warrant at the home or place of business, marijuana cases often raise substantial 4th Amendment claims. One of the first questions to ask in any case in which the accusation is possession of marijuana is how the police came to be in a position to find the substance they think might be marijuana in the first place. In many cases, the government may well have substantial answers, but not in every case. This is an issue that requires the advice of an experienced criminal defense lawyer. If you believe that the police acted improperly in their dealings with you or someone you care about, you should consult with the criminal defense lawyer. You may find that the police were in fact justified, or you may find that you have a substantial search and seizure issue that could influence the outcome of the case. But consult with a criminal lawyer. Popular notions about search and seizure are frequently wrong or distorted. You need professional advice.

Weights and Measures

Marijuana possession cases depend upon the weight of marijuana for their seriousness. Here is a simple breakdown.

More than 25 grams = B misdemeanor (maximum 90 days in jail)

More than 2 ounces = A misdemeanor (maximum 1 year in jail)

More than 8 ounces = E felony

More than 16 ounces = D felony

More than 10 pounds = C felony