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Marijuana Charges / Marihuana Offenses

As an attorney on NORML's Legal Committee, Rochelle S. Berliner is committed to reforming marijuana laws in the state of New York. Each jurisdiction throughout the greater New York area has various diversion programs for certain misdemeanor and felony offenses, including an "adjournment in contemplation of dismissal" or drug treatment programs.

Many people who contact our office already know that entering a treatment program is not necessarily the right thing to do given the facts of their particular case.

The resources on this website are intended to provide you with information on state and federal marijuana policies. This general information is not legal advice. To obtain legal advice, you must speak directly with an experienced New York marijuana defense attorney about the particular facts of your case.

In New York, marijuana is not generally considered a controlled substance or a narcotic under the state's drug crime statutes. Instead, marijuana charges are separately defined under Penal Law § 221 which provides for several different types of penalties for marijuana-related offenses. The penalties associated with marijuana charges often depend on the amount of marijuana found, whether the marijuana was in plain sight and whether there is evidence of an intention to sell or distribute.

If you have been cited or arrested for any marijuana or cannabis related offense (also commonly called pot or weed), contact Rochelle S. Berliner, an attorney on the NORML Legal Committee which fights for the reform of marijuana laws across the country. Contact an experienced marijuana defense attorney for the five boroughs of New York City, including Queens, Manhattan, Brooklyn and the Bronx, as well as Nassau and Suffolk Counties.

Marijuana Defense Attorney in Queens, NY

Rochelle S. Berliner represents professionals charged with marijuana offenses who are particularly affected by the collateral consequences of being cited or arrested for the offense. Collateral or indirect consequences include reporting requirements for school teachers, pilots, law enforcement officers, members of the military, nurses and other healthcare professionals.

High school, college and graduate students throughout New York can also face disciplinary actions brought by the educational institution, even if the criminal charges are dropped. College and graduate school students can also lose their federally-funded loans based upon any drug conviction. Drug convictions that make someone ineligible for student loans and other financial aid can include any marijuana offense such as Unlawful Possession of Marihuana under New York Penal Law §221.05.

You also must be aware that a conviction for any marijuana crime or any narcotics crime, whether misdemeanor or felony, will result in a mandatory driver’s license suspension for six months.

A criminal summons or arrest for any marijuana offense in New York can also have other serious consequences, including the creation of a criminal record, possible loss of child custody, problems for parents who want to adopt or become foster parents, loss of public housing, and the possible loss of financial aid. These marijuana charges are among the most common criminal charges in New York and the United States.

Call 718-261-5600 today.


Marijuana Related Offenses in the State of New York

The State of New York has the second highest per capita cannabis arrest rates in the United States. Nearly 93,000 people in New York are arrested or cited for marijuana offenses each year. Approximately half of those arrests are made by the New York City Police Department. In 2010 alone, the NYPD arrested 50,383 men and women for low-level marijuana offenses which made up 15% of the total arrests made by NYPD.

By focusing a significant part of her practice on marijuana charges, Rochelle S. Berliner can provide her clients with an aggressive defense while fighting for the best possible result in each case. Rochelle S. Berliner is available to answer your questions and begin your defense today.

An aggressive defense requires attacking each part of the prosecutor's case including filing motions to dismiss and motions to suppress. Rochelle S. Berliner provides free and confidential consultations to discuss the facts of the case with you. Call (718) 261-5600 for more information.


Marijuana Charges Practice Areas

The Law Office of Rochelle Berliner focuses on several specific marijuana charges. First, she works with individuals accused of "Unlawful Possession of Marijuana" which is the most common drug offense in New York State.

She also represents clients charged with "Public Possession of Marijuana" in which an individual is charged for either smoking in public or possessing marijuana that is "open to public view." She will use her previous experience any defenses that might apply including an argument that the stop was illegal or the substance was not in your actual or constructive possession. Additionally, she also takes more serious cannabis cases, such as felony "Possession of More Than 25 Grams" of marijuana.

Lastly, her practice also includes defending those who were given a "Marijuana Appearance Ticket" rather than being arrested. This ticket is a summons to appear in court with the same potential penalties as another who was arrested, if ultimately convicted of the crime. Although an appearance ticket seems to be a less serious issue, it is not, and a strong criminal defense attorney is just as necessary for this process as for a possession arrest.


Queens, NY Marijuana Information Center


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Aggressively Fighting a Marijuana Charge in New York City

Many clients do not wish to admit to any wrongdoing or to submit to any invasive supervision, particularly when the law enforcement officer performed an illegal search or seizure. Prosecutors with the District Attorney's Offices throughout Queens and the rest of New York City sometimes have problems presenting a positive lab report confirming that substance was indeed cannabis. In other cases, the prosecutor cannot prove that the individual charged was in actual or constructive possession of the marijuana.

For individuals with no prior record who are professionals such as college or graduate students, attorneys, nurses or doctors in the healthcare profession, law enforcement officers, pilots, members of the military, school teachers or educational instructors, any disposition other than an outright dismissal may have serious consequences to continuing in their chosen profession. 

Other consequences of a marijuana conviction can include ineligibility for financial aid, a driver's license suspension and the creation of a criminal record.

Under the laws of New York, these charges involve either the possession or the sale of marijuana. The penalties for each type of offense depend on the weight of the marijuana seized. Although the State of New York has "decriminalized" approximately one-half of the marijuana offenses, New York still leads the county in the number of individuals cited or arrested for cannabis related charges.

A study published by Queens College professor Harry Levine in 2007 entitled “Dollars for Collars” found that eight African-Americans or Hispanics were arrested for marijuana possession for each arrest of a Caucasian, even though the rate of usage among the groups is similar. The current system allows for selective enforcement, disenfranchises anyone cited for the offense while diverting valuable law enforcement resources away from violent crimes in New York City.


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Violation for Unlawful Possession of Marihuana Less than 25 grams under New York's Penal Law § 221.05

When the possession of marijuana (not found in "plain view") involves less than 25 grams, the offense typically charged is "Unlawful Possession of Marihuana" under New York Penal Law §221.05. This offense is not considered a crime, but rather a violation. A $100 fine can be imposed for the first offense. The maximum jail sentence for a violation is 15 days.

The goal for resolving a violation of Penal Law § 221.05, however, is to get the case dismissed through an "Adjournment in Contemplation of Dismissal." Referred to as an "ACOD" or "ACD," this resolution essentially allows the offense to disappear from your record as if the violation never occurred. In certain cases with certain judges, the ACD may require some community service hours and a fine. More importantly, you must avoid any other criminal offenses for one year as part of the disposition. If you successfully complete the requirements, the charge will be dismissed and the record sealed, which allows you to avoid any criminal record for most purposes.

When the accusation alleges that the marijuana was not found in plain view, law enforcement officers often have a difficult time justifying the legality of the search and seizure. In certain cases, a motion to suppress or dismiss can be filed and litigated by your criminal defense attorney.


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Marijuana Possession in New York City

Some marijuana possession charges now will be handled differently in New York City. In 2014, the city enacted a new law that will protect people who are accused of possessing less than 25 grams of marijuana in New York City. Rather than arresting people on low-level marijuana charges, officers will issue them tickets instead.

If an officer writes a ticket for a small possession of marijuana, the alleged offender must turn over all of the substance to the officer. He or she then would receive a summons to appear in court at a later date. The first offense would result in a fine of $100, but the person would not have a permanent record of the offense.

This law does not affect the state and national laws. For example, if a person is accused of possessing more than 25 grams, he or she still could face criminal charges. Additionally, if a person is smoking marijuana in a public place, he or she still could be arrested.


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NY Criminal Procedure Law § 150.75 for Appearance Ticket Requirement in Certain Marijuana Cases

The New York legislature added the appearance ticket requirement for certain marijuana cases. The requirement that no arrest is made and that only a desk appearance ticket is issued does not apply unless the only offense is for marihuana violation under NY Penal Law § 221.05. The appearance ticket requirement is not applicable if any other offense is alleged along with the marijuana possession.

The law enforcement officer is required to promptly issue an appearance ticket. Therefore, in certain cases, the officer may not have the right to search the person incident to arrest. If such a search does occur, and other incriminating evidence is found, talk to an experienced criminal defense attorney about issues that might exist related to the legality of that search.

New York Criminal Procedure Law § 150.75 provides:

  1. The provisions of this section [related to the appearance ticket] shall apply in any case where the defendant is alleged to have committed an offense defined in section 221.05 of the Penal Law [for a marihuana offense involving a small amount for personal use], and no other offense is alleged, notwithstanding any provision of this chapter or any other law to the contrary.
  2. Whenever the defendant is arrested without a warrant, an appearance ticket shall promptly be issued and served upon him, as provided in this article. The issuance and service of the appearance ticket may be made conditional upon the posting of pre-arraignment bail as provided in Criminal Procedure Law § 150.30 but only if the appropriate police officer:
    • is unable to ascertain the defendant's identity or residence address; or
    • reasonably suspects that the identification or residence address given by the defendant is not accurate; or
    • reasonably suspects that the defendant does not reside within the state. No warrant of arrest shall be issued unless the defendant has failed to appear in court as required by the terms of the appearance ticket or by the court.

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Possession of Marijuana Laws in New York

Any possession of marijuana offense of 25 grams or more can be charged as a criminal offense. The maximum penalty involved depends on the amount of cannabis seized.

For informational purposes, a determinate sentence is a sentence for a specific period of time and not within a range of time. In other words, when a determinate sentence is between 1 to 2.5 years, the sentence will be a straight amount of time within those guidelines, so, for example, it could be a straight 2 years.

The law requires that at the end of every determinate sentence, a period of Post-Release Supervision must follow.  Post-release supervision is similar to parole.  Under New York Penal Law § 70.45, post-release supervision begins when a person is released from prison.  If the person violates the conditions of the post-release supervision, he or she could go back to prison for a period up to the balance of the remaining time of the post-release supervision.  For example, if a person is released from prison with two years of the period of post-release supervision and violates after six months, he or she could get sent back to prison for up to 1.5 years.

Amount Charge Jail Time Fine
25 g or less - Penal Law §221.05 violation 15 days and/or fine $100 (1st offense) $200 (2nd offense)
$250 (3rd offense)
25 g to 2 oz (or any amount in plain view) - Penal Law §221.10 class B misdemeanor 3 months and/or fine and/or 1 year of probation $500
2 to 8 oz - Penal Law §221.15 class A misdemeanor 1 year and/or fine and/or 2-3 years of probation $1,000
8 to 16 oz (first felony offense) - Penal Law §221.20 class E felony 1.5 - 2 years determinate sentence plus post-release supervision of 1-2 years, or 3-5 years of probation $5,000
8 to 16 oz (second offense with prior non-violent felony) class E felony 1.5 - 2 years determinate sentence plus post-release supervision of 1-2 years, or 3-5 years of probation $5,000
16 oz to 10 lbs (first offense) - Penal Law §221.25 class D felony 1 - 2.5 years determinate sentence plus post-release supervision of 1 year, or 3-5 years of probation $5,000
16 oz to 10 lbs (second offense with prior non-violent felony) class D felony 1.5 - 4 years determinate sentence plus post-release supervision of 1 - 2 years, or 3-5 years of probation $5,000
More than 10 lbs (first offense) - Penal Law §221.30 class C felony 1 - 5.5 years determinate sentence plus post-release supervision of 1 - 2 years, or 3-5 years of probation $15,000
More than 10 lbs (second offense with prior non-violent felony) class C felony 2 - 8 years determinate sentence plus post-release supervision of 1.5 - 3 years, or 3-5 years of probation $15,000

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New York Criminal Possession of Marijuana in a Public Place

Criminal Possession of Marihuana in the Fifth Degree under New York's Penal Law § 221.10(1) - “Marihuana in a Public Place”

If you are arrested for possession of less than 25 grams of marijuana and if the cannabis is either burning or open to public view, the police can charge you with Criminal Possession of Marihuana in the Fifth Degree, a Class B Misdemeanor under New York Penal Law § 221.10. The offense is punishable by up to ninety (90) days in jail and/or up to a $500 fine.

Law enforcement officers throughout New York City have sometimes used a loophole in the law to charge someone with a criminal offense when only a violation is warranted from the circumstances. This loophole involves detaining the person and ordering them to empty their pockets, purse or bag. 

If the individual complies with the officer's request and takes out any small amount of marijuana, the officer charges them with criminal possession of marihuana "open to public view" which is a criminal offense with criminal consequences. In many of these cases, the stop, detention, and search are illegal.

In other cases, if a group of people is standing around and one person in the group is smoking marijuana, the police will arrest several individuals in the group and charge them all with possession of the marijuana cigarette or joint.

In many of these cases, the District Attorney will not be able to prove beyond a reasonable doubt that the individual charged was in actually the one in possession of the cannabis. Other important defenses exist for charges of the "open to public view" version of New York's marihuana laws.


Criminal Possession of Marihuana in the Fifth Degree under New York's Penal Law § 221.10(2) - More than 25 grams

When a person is charged with possessing more than 25 grams of marijuana (often referred to by law enforcement as CPM), they also can be arrested for Criminal Possession of Marihuana in the Fifth Degree. This will be the charge as long as the amount of marijuana is more than 25 grams but less than 2 ounces. The offense carries a penalty of up to three months or ninety (90) days in jail or 1 year of probation and/or up to a $500 fine.


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Criminal Possession of Marijuana in New York

Criminal Possession of Marihuana under New York Penal Law § 221.15 - 2 ounces to 8 ounces

When a person is accused of possessing more than 2 ounces but less than 8 ounces of cannabis, they will be charged with Criminal Possession of Marihuana in the Fourth Degree (often called “CPM”), which is a class A misdemeanor under Penal Law § 221.15.  It carries a punishment of up to one year in jail or three years of probation and/or up to a $1,000 fine.

Criminal Possession of Marihuana under New York's Penal Law § 221.20 - 8 ounces to 16 ounces

When a person is accused of possessing more than 8 ounces but less than 16 ounces (1 pound) of marijuana, they will be charged with a class E felony. The sentence can be between one year and 18 months in prison and a $5,000 fine.

Criminal Possession of Marihuana under New York's Penal Law § 221.25 - 16 ounces to 10 pounds

When a person is accused of possessing more than 16 ounces (1 pound) but less than 10 pounds (10 lbs) of marijuana, they will be charged with a class D felony. The maximum sentence is 30 months (2.5 years) in prison, with a minimum of one year.

Criminal Possession of Marihuana under New York's Penal Law § 221.30 - More than 10 pounds

When a person is accused of possessing more than ten (10) pounds (10 lbs) of cannabis, the offense is punishable by a maximum of 66 months in prison (5.5 years), with a minimum sentence of one year. Criminal Possession of Marihuana in the First Degree is a class C felony.


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Criminal Sale of Marijuana Charge in New York

New York's Laws on Criminal Sale or Delivery of Marihuana (aka marijuana, pot, weed, cannabis)

While other states draw a legal distinction between selling marijuana or giving it away to a friend (without any remuneration or monetary exchange), New York's statutory scheme does not draw such a distinction. Whether you give the marijuana away to a friend or whether you sell the marijuana, you can be charged with the criminal offense of "Criminal Sale of Marihuana." The maximum jail time and fines depend on the amount of marijuana involved.  The sentencing structure is the same as that of the Criminal Possession of Marihuana charges.

The maximum jail time and fines depend on the amount of marijuana involved.  The sentencing structure is the same as that of the Criminal Possession of Marihuana charges.

Amount Charge Jail Time Fine
Less than 2 grams class B misdemeanor Up to 90 days Up to $500
2 grams to 25 grams class A misdemeanor Up to 1 year, and 2-3 years on probation Up to $1,000
25 grams - 4 ounces class E felony Up to 1.5 years (Minimum one year), 3-5 years probation $5,000
4 - 16 ounces class D felony Up to 2.5 years (Minimum one year), 3-5 years probation $5,000
More than 16 ounces class C felony Up to 5.5 years (Minimum one year), 3-5 years probation $15,000

Criminal Sale of Marihuana under New York's Penal Law § 221.35 - Two grams or less, or one cigarette

If you sell or give away less than two grams of marijuana or one marijuana cigarette, the criminal offense is considered Criminal Sale of Marihuana in the Fifth Degree and is a Class B misdemeanor which is punishable by up to 3 months in jail, and fine not exceeding $500.

Criminal Sale of Marihuana under New York's Penal Law § 221.40 - 25 Grams or less

If you sell or give away between two grams and twenty-five (25) grams of cannabis, then the criminal offense is considered Criminal Sale of Marihuana in the Fourth Degree and is Class A misdemeanor, which is punishable by up to one year in jail and not more than a $1,000 fine.

Criminal Sale of Marihuana under New York's Penal Law § 221.45 - More than 25 grams

If you sell or give away between 25 grams and 4 ounces of marijuana, then the criminal offense is punishable by at least one year and not more than 18 months in prison and up to a $5,000 fine. Criminal Sale of Marihuana in the Third Degree is a class E felony.

Criminal Sale of Marihuana under New York's Penal Law § 221.50 - More than 4 ounces, or sale to a person under 18

If you sell or give away between 4 ounces and 16 ounces (1 pound) of marijuana, or if you sell any amount of marijuana to a person under the age of 18, then the criminal offense is punishable by at least one year and up to 2.5 years in prison and up to a $5,000 fine. Criminal Sale of Marihuana in the Second Degree is a class D felony.

Criminal Sale of Marihuana under New York's Penal Law § 221.55 - More than 16 ounces

If you sell more than 16 ounces (1 lb) of marijuana, than the criminal offense is punishable by at least one year and up to 5.5 years in prison and up to a $15,000 fine. Criminal Sale of Marihuana in the First Degree is a class C felony.


Penalties for Marijuana Hash and Concentrates in New York

New York law provides for the following penalties for concentrated forms marijuana and hash including:

  • Possession of up to 1/4 of an ounce is charged as a misdemeanor punishable by up to one year of incarceration and a $1000 fine;
  • Possession of 1/4 ounce to one ounce is charged as a felony punishable by up to seven (7) years in prison and a $5,000 fine;
  • Sale of hash and concentrated forms of marijuana is charged as a felony punishable by up to fifteen (15) years in prison and a $15,000 fine.

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Sale or Delivery of Marihuana to a Minor under New York Penal Law

The sale or delivery of any amount of marijuana to a minor child (under age 18) is considered a felony, which carries a prison sentence of at least one year and up to 2.5 years in prison and a $5,000 fine.


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New York Marijuana Defense Resources

Summary of New York Marijuana Laws from NORML - Visit the NORML New York website to learn more about marijuana laws in New York including information about the way in which first and second offenses for possession of 25 grams or less of cannabis have been "decriminalized."

Medical Marijuana Passage - Article from the Marijuana Policy Project (MPP) discusses the reason why compassionate Republicans will be key to medical cannabis' passage in New York. Discusses statistics and polling data showing that 71% of all New Yorkers believe it's a good idea to allow adults to legally use doctor-prescribe medical cannabis.

Law Enforcement Against Prohibition (LEAP) - A coalition of current and former law enforcement officers, along with other concerned Americans, have dedicated extensive efforts to reforming current federal and state marijuana policies. They believe that current drug policies fail to address the problems of drug abuse, addiction, and crime associated with the current black market of drugs.

U.S. Drug Enforcement Administration - The Drug Enforcement Administration (DEA) enforces federal drug and narcotics laws in cases involving the growing, manufacturing or distribution of controlled substances. They investigate and prepare for the prosecution of criminals in major drug-related cases across the U.S., which may involve working with other organizations on matters related to international crimes.

Office of National Drug Control Policy - The White House Office of National Drug Control Policy (ONDCP) was established in 1988. Its purpose is to establish policies, priorities, and objectives for the nation's drug control program in an effort to reduce illegal drug use and crime.

New York Marijuana and Drug Threat Assessment - Department of Justice assessment about the threats associated with cannabis in New York from the National Drug Intelligence Center, dated November 2002.

2010 NYC Marijuana Arrest Numbers Released: 50,383 New Yorkers Arrested for Possessing Small Amounts of Marijuana - Read the press release from the Drug Policy Alliance dated February 10, 2011, which cites statistics from the recently released New York Division of Criminal Justice Services study on the number of marijuana arrests made in 2010.


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Law Office of Rochelle S. Berliner | Marijuana Defense Lawyer in Queens, NY

After an arrest for marijuana (also called pot, weed or cannabis), contact an experienced Queens criminal defense attorney. Marijuana offenses may have a serious affect on your current and future employment options, housing, and certain licenses. 

It is particularly concerning for students and many professionals, including doctors, lawyers, pilots, and several other occupations.

Rochelle S. Berliner aggressively fights these types of drug cases throughout the greater New York City metropolitan area including Queens, Manhattan, Brooklyn and The Bronx. Contact the Law Office of Rochelle S. Berliner today at 718-261-5600 or submit an online form to schedule a free consultation that will allow you to discuss your legal options.


This article was last updated on January 13, 2017.
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