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Defending tickets for marihuana and related offenses

Marijuana defined

New York’s Penal Law § 220 refers to Article 33 § 3302 of New York’s public health law for the definition of marihuana. Under sub section 21 of PHL § 3302, "Marihuana" means all parts of the plant of the genus Cannabis, the seeds thereof (unless sterilized and incapable of germination), and the resin extracted there from. It does not include the stalks of the plant, fiber produced from the stalks, or oil or cake made from the seeds of the plant.

Marijuana is not a “controlled substance” such as cocaine, heroin, or other drugs, unless it is  "Concentrated Cannabis," which is defined as the separated resin obtained from a plant, or a substance which contains more than 2 ½% by weight of delta-9 tetrahydrocannabinol, or delta-1 tetrahydrocannabinol or its isomer.

If you are in possession of concentrated cannabis you will be charged with possession of a controlled substance under NY Penal Law § 220. If you are in possession of traditional marihuana you will be charged under NY Penal Law § 221.

Offenses involving marihuana

New York’s marijuana statutes are codified at NY Penal Law § 221. There are 11 marihuana statutes ranging from a violation to a class C felony. The 11 marijuana statutes are:



NY Penal L. § 221.05. Unlawful possession of marihuana (UPM)


NY Penal L. § 221.10. Criminal Possession marijuana 5th Degree

Class B Misdemeanor

NY Penal L. § 221.15. Criminal Possession marihuana 4th Degree

Class A Misdemeanor

NY Penal L. § 221.20. Criminal Possession marijuana 3rd Degree

Class E Felony

NY Penal L. § 221.25. Criminal Possession marihuana 2nd Degree

Class D Felony

NY Penal L. § 221.30. Criminal Possession marijuana 1st Degree

Class C Felony

NY Penal L. § 221.35. Criminal sale marihuana 5th Degree

Class B Misdemeanor

NY Penal L. § 221.40. Criminal sale marijuana 4th Degree

Class A Misdemeanor

NY Penal L. § 221.45. Criminal sale marihuana 3rd Degree

Class E Felony

NY Penal L. § 221.50. Criminal sale marijuana 2nd Degree

Class D Felony

NY Penal L. § 221.55. Criminal sale marihuana 1st  Degree

Class C Felony

Elements of a marijuana possession charge

Unlawful possession of marihuana (UPM), Penal Law § 221.05:

Possession of any amount of marijuana is illegal and a violation

Criminal possession of marihuana in the 5th degree, Penal L. § 221.10 (CPM 5th):

Possessing marijuana in public, open to view whether or not burning, or when the aggregate weight is more than twenty-five (25) grams.

Criminal possession of marijuana in the 4th degree, Penal L. § 221.15 (CPM 4th):

 Possessing marihuana with an aggregate weight of more than two (2) ounces.

Criminal possession of marijuana in the 3rd degree, NY Penal L. § 221.20 (CPM 3rd):

Requires possessing marihuana with an aggregate weight of more than eight (8) ounces.

Criminal possession of marijuana in the 2nd degree, NY Penal Law § 221.25 (CPM 2nd):

Possessing marijuana with an aggregate weight of more than sixteen (16) ounces.

Criminal possession of marihuana in the 1st degree, NY Penal Law § 221.30 (CPM 1st)

Possessing marihuana with an aggregate weight of more than ten (10) pounds.

Elements of a marihuana sale charge

Criminal sale of marijuana in the fifth degree, NY Penal Law § 221.35:

Sale of marihuana of 2 grams or less, or 1 or more marijuana cigarettes even if less than 2 grams.

Criminal sale of marihuana in the fourth degree, NY Penal Law § 221.40:

Sale of marijuana of an aggregate weight of more than 2 grams.

Criminal sale of marijuana in the third degree, NY Penal Law § 221.45:

Sale of marijuana of an aggregate weight of more than 25 grams.

Criminal sale of marihuana in the second degree, NY Penal Law § 221.50:

Sale of marihuana of an aggregate weight of more than 4 ounces, or sells marihuana of any weight to a person less than 18 years of age.

Criminal sale of marijuana in the fourth degree, NY Penal Law § 221.55:

Sale of marijuana of an aggregate weight of more than 16 ounces.

Defending your unauthorized possession of marijuana charge

Despite the fact that Unlawful possession of marihuana (UPM), NY Penal L. § 221.05 is a violation and not a crime, it is still a serious charge. Even if charged on a summons it’s still an arrest; a conviction results in a criminal history, and a drug charge can affect your future ability to get employment, college scholarships, college financial aid, and into the school of your choice.  A conviction can also result in expulsion from a school that you are in or loss of a job. Misdemeanor and felony marijuana convictions can also result in a suspension of your driver’s license, whether or not you were caught with the marihuana while driving or in a car. Being charged with possession with intent to sell is even worse. It implies that you are a “drug dealer.”

Attack That Ticket’s nuclear defense to a marihuana possession charge

What many prosecutors, judges, and defense lawyers do not know is that there is a mandatory defense written right into the criminal procedure law, NY CPL. § 170.56, which requires a dismissal or an adjournment in contemplation of a dismissal for first time offenders charged with unlawful possession of marihuana, Criminal Possession marijuana 5th Degree, Criminal Possession marihuana 4th Degree, Criminal sale marijuana 5th Degree, and Criminal sale marihuana 4th Degree. New York CPL § 170.56 REQUIRES that, upon a defendant’s application a first time offense for the above charges must be either dismissed in the interest of justice or granted an adjudication in contemplation of dismissal (an “ACD” or an “ACOD”). Adjudication in contemplation of dismissal is the functional equivalent of an immediate dismissal because the case gets dismissed by operation of law within 1 year from the date the ACD was granted, contingent upon the defendant not getting arrested within that 1 year. 

Other defenses to your marijuana charge

Even if you are not a first time offender, there are other defenses available. Sometimes we negotiate a harassment or disorderly conduct violation to get our client an “out of drug” conviction which will have less of an impact on his record. Often times a defense comes down to discrediting the alleged weight of the marihuana you were charged with. Many times the marihuana is collateral charge to a different issue such as a search incident to arrest or a motor vehicle stop. In those cases we challenge the validity of the underlying stop and search to have the marijuana evidence suppressed as fruits of the poisonous tree. When our evaluation reveals that the prosecution has a strong case against you we negotiate a deal that makes sense. If you have a serious drug problem we seek alternate diversionary remedies such as drug court and other drug treatment programs.

Do you have an uncleared marihuana arrest warrant for failure to appear?

If there is an arrest warrant for your failure to appear on a charge of unauthorized possession of marijuana you should not leave this “hanging over your head.” If this is you then you probably received a ticket some time ago,  thought it was a joke, ignored it, and are now wondering what happened to it. Or maybe you went for a job or background check, or were pulled over out of state and were advised of an open warrant in New York.

We routinely represent people on outstanding warrants, and with all of the defenses available with a marihuana charge it makes no sense to keep the warrant open. When you retain our office to resolve such a matter we contact the court and prosecutor and, rather than surrendering you to the local police department surrender you to the court on a regularized calendar date. Most often we pre-conference the case with the prosecutor and have a resolution in place whereby the warrant can be recalled and your case dismissed or plead out to a violation or ACD.


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