Unlawful Possession of Marijuana
A marijuana charge is treated differently than any other drug charge. New York state laws that apply to "possession of a controlled substance" do not apply to marijuana charges because marijuana is not considered a "controlled substance" in New York State. This is an important difference to note since charges for possession of a controlled substance can carry much harsher penalties. Marijuana possession is still not legal here in New York, but there may be more flexibility in negotiations on a marijuana case as opposed to a heroin or cocaine case.
However, a charge of unlawful possession of marijuana should not be taken lightly. This is one of the more common charges as the prosecutors must simply establish that an individual had marijuana in their possession at the time of the arrest. This must be a knowing possession, meaning they must be consciously aware that marijuana is on their person or otherwise have immediate access to it.
Queens Unlawful Possession of Marijuana Attorney
While a marijuana charge typically incurs less serious penalties than those for controlled substances, marijuana possession can still 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.
A criminal defense attorney can help you get the charges dismissed or lowered. Rochelle S. Berliner is a former prosecutor with the District Attorney's Office for New York County in Manhattan and the Office of Special Narcotics. For 12 years, Rochelle 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. Call today for a free consultation.
- Violation for Unlawful Possession of Marihuana Less than 25 grams
- Adjournment in Contemplation of Dismissal for Marijuana Charges
- Appearance Ticket Requirement in Certain Marijuana Cases
- Using Procedure to Your Advantage
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 State Penal Law § 221.05. The offense is considered a violation, not a criminal offense. A $100 fine can be imposed for the first offense, and a $200 fine can be imposed on a second violation.
A third or subsequent offense carries a punishment of up to 15 days in jail. A prior offense is defined as a prior Unlawful Possession of Marihuana or any offense under article 220 (the Controlled Substances section of the Penal Law), committed within the three years immediately prior to the present offense.
Because these accusations allege 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.
In cases in which an illegal search is not an issue or when sufficient evidence supports the allegation, the first goal for resolving a violation of Penal Law §221.05 is getting the case dismissed through an "adjournment in contemplation of dismissal." Often called "ACOD" or "ACD", this resolution essentially allows the violation to disappear from your record as if never occurred.
Under the law, you are entitled to an ACD for your first offense of Unlawful Possession of Marijuana. In certain cases with certain judges, to get the ACD, you may be required to perform community service hours and you must avoid any other criminal offenses for one year as part of the ACD disposition. However, if you successfully complete the requirements, the charge will be dismissed, which may allow you to avoid any criminal record for most purposes.
The New York legislature added the appearance ticket requirement for certain marijuana cases. The requirement that no arrest is made and that only an appearance ticket is issued does not apply unless the only offense is for a marijuana violation under New York Penal Law § 221.05. The appearance ticket requirement is not applicable if any other offense is alleged.
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 subject incident to arrest. If such a search does occur, and other incriminating evidence is found, talk to an experienced criminal defense attorney in Queens, NY, about issues that might exist related to the legality of that search.
New York Penal Law § 150.75 provides:
- The provisions of this section [related to the appearance ticket] shall apply in any case wherein the defendant is alleged to have committed an offense defined in section 221.05 of the penal law [for a marijuana 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.
- 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 § 150.30 of this chapter but only if the appropriate police officer
- (a) is unable to ascertain the defendant's identity or residence address; or
- (b) reasonably suspects that the identification or residence address given by the defendant is not accurate; or
- (c) 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.
After you have been charged with any offense in New York, including unlawful possession of marijuana , a document is prepared for your case called an "accusatory instrument" (it is also referred to as a "Criminal Court Complaint"). This document explains how your actions were unlawful. Failure to prepare this document properly may potentially result in a dismissal of the case.
Additionally, the prosecution is required to present a lab analysis of the substance that proves it is an illegal substance (rather than synthetic incense or any other material that can be confused with a drug). This must be corroborated (or proven) before any appearance in court.
Should the judge not have an official substance analysis or field test report, your charge for unlawful possession of marijuana may be dismissed. However, this does not apply to other civil charges. It also does not apply to criminal possession of marijuana or other marijuana related criminal offenses. In these cases, the prosecution may have 60 days or 6 months to produce a lab report.
Law Office | Queens Marijuana Possession Defense Lawyer
If you or a loved one has been charged with unlawful possession of marijuana , you should carefully consider your legal options. Queens criminal defense attorney Rochelle S. Berliner will use her experience and insight to fight for a dismissal of your case or other favorable dispositions.
- Marijuana Charges