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New York Penal Code § 221.45: Criminal sale of marihuana in the third degree

New York Penal Code § 221.45: Criminal sale of marihuana in the third degree

Although much of the world is debating about the legality of marihuana, many states forbid the use, possession, and sale of it. New York is one such state as selling marihuana is indeed illegal in the state of New York. The selling of marihuana tarnishes the record of the individual involved and may subject them to a financial burden and a prison term. Selling is defined as any act involving the disposal of or giving of one product to another, the sale of something to another person, exchanging something with another, or even making an agreement of sale, exchange, or disposal.

The selling of marijuana is chargeable in five different manners:

1. Criminal sale of marihuana in the first degree (Class C Felony);

2. Criminal sale of marihuana in the second degree (Class D Felony);

3. Criminal sale of marihuana in the third degree (Class E Felony);

4. Criminal sale of marihuana in the fourth degree (Class A Misdemeanor); and

5. Criminal sale of marihuana in the fifth degree (Class B Misdemeanor).

The manner in which an individual is charged may depend on the age of the person the sale is made to and the quantity of marihuana involved. This article focuses on the criminal sale of marihuana in the third degree.

Marihuana includes any item concentrated in cannabis. New York Penal Code forbids the sale of the following items when comprised of marihuana:

  • Preparations;
  • Compounds;
  • Mixtures; and
  • Substances.

The sale of these items is chargeable as the criminal sale of marihuana in the third degree when the aggregate weight of the items involved is greater than twenty-five grams and less than four ounces.

Here are some examples of the criminal sale of marihuana in the third degree:
An individual sold thirty grams of marihuana to an undercover officer. He was taken into custody after receiving the buy money from the officer. Since the amount is greater than twenty-five grams and less than four ounces (113 grams), the individual will be charged with the criminal sale of marihuana in the third degree.

Another example of the criminal sale of marihuana in the third degree would include an individual who agrees to exchange greater than twenty-five grams of marihuana for a collectible item, so long as the quantity was still less than four ounces.

What is the Sentence for Criminal Sale of Marihuana in the Third Degree?: The criminal sale of marihuana in the third degree is a class E felony. As such the individual charged with this crime may be subjected to an indeterminant sentence ranging from a minimum of one-year imprisonment to four years imprisonment. However, in some instances, the offense may qualify for an alternate definite sentence of one year or less. In such a case, the court will take into account the criminal history of the offender and the underlying circumstances involved in the charge.

What are the Defenses to a Charge of Criminal Sale of Marihuana in the Third Degree?
The charges and penalties applicable to selling marihuana are not easily discernible to the public. The criminal sale of marihuana is chargeable as a misdemeanor or a felony. The degree to which an individual is charged will depend on the amount of marihuana allegedly sold. Therefore, when an individual is charged with the criminal sale of marihuana in the third degree, one defense would involve proving that the amount of marihuana in question is actually less than twenty-five grams. In doing so, even if the individual sold marihuana, they would only be guilty of a misdemeanor rather than a felony. Penalties for misdemeanors are not as severe as the penalties for felonies.
Therefore an individual charged with criminal possession of marihuana should seek legal counsel concerning their rights, penalties, and defenses.

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