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New York Penal Code § 221.10: Criminal possession of marihuana in the fifth degree

New York Penal Code § 221.10: Criminal possession of marihuana in the fifth degree

The days of prosecuting everyone for possession of marijuana in New York are over now that the state has decriminalized marijuana for personal private use in small amounts. This does mean that citation for possession in the fifth degree will not occur, and more serious marijuana related crimes involving trafficking are still illegal. The decision on what charge level to apply is based on the quantity and the presence of other paraphernalia used in smoking and trafficking the substance such as pipes, scales, and containers. Possession of these types of items can also generate additional charges that can be used to enhance penalties through separate punishment rulings. In addition, medical marijuana is also legal in state, but the New York law is the most restrictive medical marijuana law in the nation.

Scope of Fifth Degree Marijuana Possession

Possession of marijuana in the fifth degree is now a low-level violation that is actually not even classified as a crime in certain instances. Similar to a parking ticket, fines are typically standard for the first three simple possession charges. Those charges can either stem from consuming marijuana in a public place or having more than 25 grams in personal possession. Being caught with an amount over 25 grams while also possessing scales and delivery containers could result in charges being enhanced to another level.

Fifth Degree Marijuana Possession Penalties

Convictions for fifth degree marijuana possession are based on prior record with the first conviction carrying a $100 fine. A second conviction will result in a $200 fine with a third conviction potentially carry 15 days jail time along with a $250 fine. Criminal possession charges are filed as a misdemeanor when the material facts apply, and convictions are punishable by a $500 fine and up to three months incarceration for amounts between 25 grams and 2 ounces. Penalties for convictions on charges for amounts between 2-8 ounces are $1000 fine and up to one year in jail.

Medical Marijuana Cases

New York has the most restrictive medical marijuana law in the nation because smoking the substance is not considered an approved method of administration. All medical marijuana patients in New York consume the product orally as an edible form or smoke the medicine using an approved vaping device. In addition, the distance between approved physicians and dispensaries is such that many marijuana users who have medical marijuana prescriptions choose to buy from local outlets instead. Medical marijuana patients are not exempt from fifth degree prosecution for possession of the natural form of marijuana in most situations, and all of the same penalties apply in most cases. In addition, the law makes no differential for a number of plants, instead using weight only in charge determination.

Still a Serious Legal Issue

Recent studies in New York has shown that fifth degree marijuana arrests are increasing in the state and especially in New York City, even though the new law has decriminalized the product. The fact that the charge is often not filed as a crime does not mean there will be no public record of the case, which could later impact the defendant in terms of acquiring gainful employment or being approved for tenancy in certain housing establishments. While the legal aspects have lightened, the social stigma associated with drug use can still be a very negative impact for defendants even with the state’s new stance of criminal status for simple possession.

It is important to always consult with an experienced criminal defense attorney following any charge for marijuana possession because there could be an opportunity for a case diversion or dismissal when a charge can be successfully challenged. Any charges filed as criminal cases are still subject to the same rules of evidence and reasonable doubt standard. The fact that the state has reduced penalties and put minor possession in the violation category does not eliminate the notion any charge is serious for the defendant

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