Criminal Sale of Marijuana

In the War on Drugs, those that sell, the merchants, are among the top targets for the government. This even applies to selling natural products, like cannabis. The state of New York may separate marijuana from other controlled substances in its possession and sale laws.

However, sale of pot or weed is still a criminal act in Queens and the rest of New York, punishable with jail time and fines. Worse, the definition of "sale" under the law includes giving it away for free.

New York Sale of Marijuana Lawyer

If you've been arrested in New York City or Long Island for criminal sale of marijuana, have a New York marijuana lawyer on your side who will fight the charges. Call the Law Office. Rochelle S. Berliner is an experienced advocate for those accused of marijuana crimes, both in the courtroom as a criminal defense lawyer and in public policy as a member of NORML's Legal Committee. She will fight for your rights. Call the Law Office today at to set up a free and confidential consultation to discuss your charges.

Rochelle Berliner represents clients charged with sale of marijuana throughout the New York City area, including Queens County, Kings County, New York County and Bronx County. She also advocates for clients in Nassau County and Suffolk County on Long Island.

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New York Sale of Marijuana Statute

Marijuana is a natural product, with fewer harmful effects and much less capacity of creating dependence that most controlled substances. It's also the most popular illegal substance in the United States and in New York, with use common regardless of race, ethnicity or socio-economic status.

Regardless, New York still makes possession and sale of marihuana an offense under the Penal Code. However, it is separated out from other controlled substances for laws pertaining to its sale and possession, and possession of a small amount (less than 25 grams) not in public view is not even a criminal offense — it's a mere violation.

Sale of any amount of marijuana, though, does rise to a criminal offense, and New York law does not define "sale" the way you may be used to defining it. In every day usage of the word "sale," people usually mean the transfer of goods or services for money or some other form of compensation, called "consideration" in legal jargon.

However, New York Penal Law § 221.35 makes it a misdemeanor criminal offense to "sell" less than 25 grams of pot or one marijuana cigarette for no consideration  — meaning to give it away for free. That means if a friend knows you're holding and asks for a joint, you could be charged with sale of marijuana, even if you received no compensation for it.

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New York Penalties for Sale of Marijuana

While you can still be charged and convicted of sale of marijuana for giving away less than 25 grams of marijuana or one joint, the charge is less — a Class B misdemeanor, punishable by up to up to 90 days in jail and a $500 fine. That's still jail time, and money that could be better spent.

Additionally, the charge that will be on your criminal record will read "Criminal Sale of Marihuana in the Fifth Degree." That title does not make the distinction between giving away pot for free and selling it. People may be considerably less likely to give you a job, rent you an apartment or admit you into their college or university if they see your record and believe you are a drug dealer. Even a fifth-degree sale charge should be taken very seriously.

If you give away more than 25 grams or are arrested and charged with selling marijuana for money or compensation, however, the penalties can be considerably higher. The severity of the penalty depends on the amount you are accused of selling:


Sale of Marihuana in the…


Jail Time (Years)

Maximum Fine

Less than 25 grams

Fourth Degree

Class A misdemeanor

Up to 1


25 grams - 4 oz

Third Degree

Class E felony

Up to 1.5 (minimum 1)


4 - 16 oz

Second Degree

Class D felony

Up to 2.5 (minimum 1)


More than 16 oz

First Degree

Class C felony

Up to 5.5 (minimum 1)


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Defenses to New York Sale of Marijuana Charges

Prosecutors will have to prove every element in the charge "beyond a reasonable doubt," meaning that, other than some far-fetched or highly improbable scenario, they must convince jurors that what they say happened is definitely what happened. For instance, if you are charged with Criminal Sale of Marijuana in the Third Degree, the prosecutor must prove beyond a reasonable doubt that you sold marijuana, that you did so knowingly, and that you sold more than 25 grams.

This is a difficult standard to prove. An experienced New York criminal defense lawyer may be able to show doubt in some of the elements, which could lead to your charges getting reduced or dismissed.

For example, you may be charged with Criminal Sale of Marihuana in the Fourth Degree, and the accusation is that you sold someone a joint for a small amount of money. If there is any doubt about the money, the charges may be reduced to fifth degree sale. If your lawyer can show any doubt that the "sale" transpired, and the only thing they can prove is that you did, indeed, have a joint in your possession, the charge may be reduced to a violation possession charge.

While "beyond a reasonable doubt" is a difficult standard to prove, it's one New York prosecutors have proven more than capable of doing it. Having a capable, experienced criminal defense attorney on your side is your best bet.

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Law Office | Queens Sale of Marijuana Attorney

If you've been charged with any Criminal Sale of Marihuana charge in New York, call a New York criminal defense lawyer at the Law Office. She will zealously defend her clients against the marijuana charges.

Rochelle S. Berliner represents people accused of marijuana sale in Queens, Brooklyn, Manhattan, the Bronx, and Long Island. Call or submit an online form today for a free consultation.