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Cultivating Marijuana

In New York State, the act of cultivating or growing marijuana is a misdemeanor. Under New York's Public Health Law § 3382, the offense is charged as the "growing of the plant known as cannabis by unlicensed persons.” However, when a person is charged with cultivating or growing marijuana he/she is also in “possession” of marijuana (See Parmeter v. Feinberg, 105 A.D.2d 886, 887-88, 482 N.Y.S.2d 78, 79-80 (1984)). Additionally, when an individual grows large amounts of cannabis, then he and/or she may face more serious charges for possession or sell of the same marijuana being cultivated.

Queens, NY Marijuana Cultivation Lawyer

If you are charged with growing or cultivating cannabis in the State of New York, then contact an experienced criminal defense attorney at the Law Office of Rochelle S. Berliner. Marijuana cultivation defense attorney Rochelle Berliner is an active member of the NORML Legal Committee, an organization that fights for the reform of marijuana laws throughout the states including New York.

Having an experienced and highly qualified criminal defense attorney can help you get the charges dismissed or lowered. While a growing or cultivating marijuana charge is a misdemeanor, typically law enforcements would charge the person with additional charges such as possession or intent to sell, and it can adversely affect the lives of those charged. For professionals and students, it may even mean additional unintended consequences, such as disciplinary action and/or loss of financial aid.

An aggressive defense often requires filing and litigating complicated motions to suppress evidence or to dismiss the marijuana charges. Retaining legal expertise is crucial to your future prospects. For 12 years, Rochelle Berliner tried drug and narcotics-related cases in court. This perspective gives her the confidence to fight for a favorable outcome in any drug-related case. From filing motions to dismiss the charges for insufficient evidence to filing motions to dismiss the criminal charges, Rochelle Berliner fights the charges aggressively.

Call at 718-261-5600 to discuss the charges of growing cannabis in Queens County, New York, or the surrounding areas in New York City, including Brooklyn, The Bronx and Manhattan.


Overview of Marihuana Cultivation Laws


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Growing Cannabis by an Unlicensed Persons under NY PHL § 3382

The offense is charged as the "growing of the plant known as cannabis by unlicensed persons" under New York's Public Health Law § 3382 which provides:

"A person who, without being licensed so to do under this article, grows the plant of the genus Cannabis or knowingly allows it to grow on his land without destroying the same, shall be guilty of a class A misdemeanor."

The charge of growing cannabis is a class A misdemeanor punishable by up to one year in jail and/or a $1,000 fine. Although this charge is a misdemeanor, law enforcement will often charge the person with additional charges for possession of the same marijuana being cultivated.


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No Double Jeopardy for Charging Growing and Possessing Cannabis

Parmeter v. Feinberg, 105 A.D.2d 886, 887-88, 482 N.Y.S.2d 78, 79-80 (1984), stands for the proposition that possession of the same marijuana can be prosecuted under the Penal Law for "criminal possession of marihuana" and the Public Health law for "growing marijuana without a license." In other words, both types of criminal offenses can be charged when a person is caught growing marijuana.

In Parmeter, the court held that charging both crimes for possession of the same marijuana does not violate double jeopardy. The court found that both charges were designed to prevent very different kinds of harm or evil. The court explained:
It is also obvious that the two transgressions are designed to prevent very different kinds of unlawful activity. The Public Health Law is intended to prevent the propagation of the plant within this State, while article 221 of the Penal Law is directed to controlling availability and use of the substance in quantities sufficient to indicate an intent to distribute.

"We conclude that there is no impediment to petitioner's prosecution under section 221.30 of the Penal Law. The Penal Law is designed to increase penalties based upon the weight of the forbidden substances possessed. On the other hand, the element of weight is not involved in the growing offense. [The two types of criminal charges] are thus easily distinguishable on this basis."

Because the crime for the "criminal possession of marihuana" increased penalties based upon the weight of the substance, it is almost always the more serious charge. Therefore, the more marijuana being cultivated or grown, the more serious the charges.


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Marijuana Cultivation in NY Questions and Answers

How much marijuana or cannabis can I grow as a resident of New York State?

It is illegal to cultivate or grow cannabis or marijuana in New York for any purpose.

Is medical marijuana legal in New York State?

On July 5, 2014, New York Gov. Andrew Cuomo signed the Compassionate Care Act. The Act allows the purchase and possession of certain cannabis-based products under very limited medical circumstances. The law will cover only certain marijuana products for people with certain conditions who go through a designated process.

Why do I need a defense attorney if I am facing growing cannabis charges?

If you are facing charges for cultivating or growing marijuana in New York State, it is crucial to have a knowledgeable attorney. The defendant can be facing more serious related charges such as possession of marijuana and/or the intent to sell marijuana.

Is it possible to get arrested for carrying marijuana in New York?

Although the possession of cannabis (weed, pot, marijauna) has been decriminalized since 2019, it is not legal. New York law allows an officer to write an appearance ticket in certain misdemeanor marijuana cases. However, 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, a class B misdemeanor in the Fifth Degree. 

What happens if I am facing marijauna charges? 

It is crucial to have an experienced marijuana defense attorney by your side. Whether you are facing charges for cultaving or growing marijuana, possession in a public place, or any other marijuana related offense it is vital to have legal representation. At Law Office of Rochelle S. Berliner, we can discuss important defenses that may help you fight your case. Rochelle S. Berliner is an attorney on the NORML Legal Committee, dedicated to the reform of marijuana laws throughout the State of New York.


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New York State Marijuana Cultivation Offense Resources

New York Laws and Penalties (NORML) – Follow the link to the National Organization for the Reform of Marijuana Laws (NORML). The website provides information on statutes and penalties for marijuana offenses such as cultivating or growing marijuana, possession, sale, and more. Additionally, the organization provides information on medical marijuana, other state laws, legal issues in the cannabis industry, and much more.

Marijuana Policy Project (MPP) – The MPP is an organization dedicated to legalizing cannabis, it has helped pass 13 medical cannabis laws. Visit the link to learn more information about the organization, the website includes up to date information on marijuana news across various states, bills gaining momentum, issued faced by the industry, the economics of the cannabis industry, and much more.


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Finding a Lawyer for Growing Cannabis Charges

If you are charged with growing cannabis by an unlicensed person under NY PHL § 3382, then contact the Law Office of Rochelle S. Berliner. Queens criminal defense attorney Rochelle Berliner represents clients throughout Queens County and the surrounding areas of New York City, including Manhattan, The Bronx, and Brooklyn.

Whether you are charged with growing cannabis or more serious marijuana charges, let our firm review your case. Call 718-261-5600 or submit an online form to schedule a completely free initial consultation.

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Rochelle Berliner
Rochelle Berliner

Rochelle Berliner grew up in Queens, NY. She started New York Law School in January 1989 and graduated in June 1991. Immediately after law school, she started working at the New York County District Attorney’s Office, where she stayed for approximately 14 years...

  • National Police Accountability Project
  • National Association of Criminal Defense Lawyers
  • National Organization for the Reform of Marijuana Laws
  • New York State Association of Criminal Defense Lawyers
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