Unlawful Possession of Marihuana in New York

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New York ‘de-criminalized’ possession of small amounts of marihuana many years ago. That doesn’t mean that marihuana is legal in this state, though. Far from it. Possession of any amount is still ‘unlawful’. And as a recent piece in the New York Times pointed out, a police officer with even the smallest trace of initiative can find a way to upgrade ‘unlawful’ to ‘criminal’.

Penal Law Section 221.05 states that “a person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.” ‘Unlawful’ is actually a term of art meaning, essentially, “except as expressly permitted by the Public Health Law,” though if you’re a member of the general public you can assume that if you’ve got it you’ve got it unlawfully.

Unlawful possession of marihuana, or UPM, is a violation, not a crime. The fine for a first offense is $100; for a second offense within three years, $200; and for a third offense, $250. For a third offense the court can also (or instead) sentence you to 15 days in jail. Any conviction carries with it a mandatory surcharge: $120 in a city court, $125 in a town court.

Note that if you’ve got more than 25 grams of marihuana you can be charged, in addition to UPM, with a crime: criminal possession of marihuana in the 5th degree (Penal Law Section 221.10). That’s of course for starters. The penalties get worse as the amount of marihuana increases.

Even if you’re holding less than 25 grams, you’ve committed criminal possession of marihuana 5th if you smoke marihuana in a public place or have it ‘open to public view’. Public places can include areas you might not call public, like alleyways behind supermarkets. A parked car can be a public place as well. There have been complaints, according to the New York Times, that police officers have been manufacturing crimes – pressuring UPM suspects to display their marihuana on the street, then charging them with Criminal Possession 5th for doing it.

Criminal Possession of Marihuana 5th is a Class B Misdemeanor. If convicted you can receive up to three months’ jail time; a year’s probation; 60 days in jail and a year’s probation; plus a fine of up to $500 and of course the surcharge, which for a misdemeanor is $200-$205.

In addition, there are collateral consequences to consider. The collateral consequences of any drug conviction can be very unpleasant. For a student, a drug-related conviction can interfere with the ability to get financial aid. A defendant in federal court will find that an old UPM conviction adds a “criminal history point” when the sentence is calculated. If you’re a non-resident alien, a single conviction for possession (of less than 30 grams) of marihuana may bar your reentry should you leave the country.

Clearly, you’ve got to avoid even a ‘non-criminal’ violation if it’s drug-related, and New York’s statutory scheme has a designated means of avoiding a conviction for UPM. Section 170.56 of the Criminal Procedure Law specifically provides for an adjournment in contemplation of dismissal in cases involving marihuana (ACD). If it’s necessary for some reason that the charge be dismissed immediately – and the court is willing – that can be arranged as well. The burden is on the defendant to convince the court that the charge should be immediately dismissed in the furtherance of justice, but if the request for an ACD is being refused, the court is obliged to put its reasons on the record.

Even if the ACD is granted, the court can put strings on it, such as community service or drug-awareness sessions.

You can’t have an ACD if you’ve been convicted of any offense involving controlled substances. If you’ve had a conviction for any other crime – or a youthful offender adjudication involving controlled substances – you can only have an ACD with the prosecution’s consent.

If you’re eligible, go for it.