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New York Penal Code section 221.20: Criminal Possession of Marijuana in the Third Degree

New York Penal Code section 221.20: Criminal Possession of Marijuana in the Third Degree

All of the states that border the Pacific Ocean have legalized the recreational possession and use of marijuana. None of the states that border the Atlantic Ocean have done so. In New York, the general rule is that it is still illegal to possess or use marijuana in any form. Regardless of that fact, marijuana use has become acceptable in many social circles, and if a person is arrested for possession of marijuana, they might think of that arrest as being trivial. After all, the charge is not the same as possession of opioids or methamphetamine, but possession of more than just a small amount of marijuana in New York can get serious very quickly.

Possession of Marijuana in the Third Degree

New York Penal Code section 221.20 states as follows: “A person is guilty of criminal possession of marijuana in the third degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing marijuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than eight ounces.” Anybody who is convicted of an offense under section 221.20 in the State of New York is guilty of a class E felony. Proving the crime is not difficult. The prosecution need only prove the following three elements:

  • The defendant possessed one or more preparations, compounds, mixtures or substances that contained marijuana.
  • That he or she did so knowingly.
  • That it weighed more than eight ounces.


Possession of marijuana can be actual or constructive. For example, a person would be in actual possession of marijuana if it was on his or her person, or if he or she had immediate dominion and control over it. For instance, that person might be able to grab it in a matter of seconds. Constructive possession becomes an issue when more than one person is near the marijuana. That would apply when two or more people are in a car or home and the marijuana is found under a car seat or under an article of furniture inside of a home.


Once the prosecution prevails, the defendant is now a convicted felon. A conviction under section 221.20 is a class E felony. It is punishable by 16 to 48 months in prison and a fine not to exceed $5,000. Based on the defendant’s criminal history, the defendant can be placed on probation for up to five years. For purposes of first offenders, the sentence would likely be probation, but there is no guarantee of that.


If there is a reasonable doubt as to the actual weight of the marijuana, that can be challenged in court. Of course, actual or constructive possession of any marijuana can be challenged by a motion to suppress evidence illegally seized. A motion to quash arrest might also be viable. For purposes of either type of motion, certain rules must be followed in searching a person, their vehicle or their home. If there were violations of those rules, a judge might grant a motion to suppress evidence illegally seized and quash the arrest of the defendant.

Even if you’re in possession of eight ounces of marijuana for your own personal use, you can still be convicted under section 221.20 and be sent to prison or be sentenced to probation. In either case, you will be a convicted felon for life. That is going to be revealed on any background check. The conviction can interfere with employment, educational and housing opportunities. Always remember that the prosecution has the burden of proving you guilty of a charge beyond a reasonable doubt. Exercise your right to remain silent and your right to any attorney. Don’t give a statement or confession of any kind. No matter what police might say about going easier on you, it will only be used against you by the prosecution in the future. Contact our offices right away after any marijuana arrest to speak with a New York drug crimes attorney. Possessing any quantity of it is still illegal in New York.

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