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New York Penal Code § 221.05: Unlawful possession of Marihuana

New York Penal Code § 221.05: Unlawful possession of Marihuana

Although marijuana is legal in the District of Columnia and 10 states, the possession of marijuana can result in criminal charges in the state of New York. Recently, policy changes have been implemented to reduce incarerations through the issue of summons and fines in lieu of arrests.

New York Penal Code § 221.05 details the legality of the unlawful possession of marijuana. In most cases, possession will not result in imprisonment. Instead, you will be administered a ticket and required to pay a fine. However, if your drug possession exceeds 28 grams, you could face charges of a misdemeanor.

Is marijuana possession a crime?

Now, marijuana possession is considered a violation more than a criminal activity, so you most likely won’t be arrested or sent to jail if a law officer catches you in possession of the drug. However, prior drug offenses or other related criminal activity may accompany the violation and result in significant additional charges.


Police respond to a noise complaint in an apartment complex in Manhattan. Upon entering the apartment, the officers discover bags of marijuana, joints and a bong on the coffee table. The users are all issues a ticket for unlawful possession of marihuana.


In most cases, you won’t receive any jail time for marijuana possession. No jail time is involved, and because the violation is not considered a criminal act, it will not show up on your criminal record. Instead, you will be issued a fine for up to $100. However, if you have been convicted of drug charges in the past or have previous marihuana or other controlled substances violations within the last three years, you could be arrested and placed in jail for up to 15 days and pay $250.

First-time offenders won’t have to worry about being arrested, but anyone who carries a criminal record and has been convicted of drug charges or substance violations in the past could face greater consequences.

What about medical marijuana?

Medical marijuana is legal in the state of New York with a prescription from a licensed physician. You could still face a violation if you are found to possess greater than the prescribed amount or are caught purchasing the marijuana through unlawful means.


Your best defense in contesting an unlawful possession of marijuana violation is criticizing the search procedures of the law enforcement officer(s) who administered the ticket. There are specific guidelines in place for search protocol, and an officer who unethically or illegally searches your home or body could be subject to penalties. If you are able to argue and prove that the search was unlawful, a prosecutor will have to dismiss the charges regardless of your drug possession.

The Constitution’s Fourth Amendment protects people against unreasonable search and seizure by law enforcement officers. If you feel that you have been unlawfully searched and charged with a violation, arguing police practice could help your defense.

Working With a Lawyer

A criminal defense attorney can help you dispute an unlawful marijuana possession violation; many violations are often associated with additional, legitimate criminal charges including domestic abuse, drug crimes, assault and criminal mischief. Depending on your criminal history, a drug violation could result in jail time or impact your current probation.

If you have been charged with unlawful possession of marihuana under New York Penal Code § 221.05, contact a licensed defense attorney to explore your defense options. Look for a lawyer who has experience in defending clients facing drug charges in New York courts. Schedule a free consultation and learn about your options to avoid further consequences and possibly waive any fees against you.

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