Is Marijuana Possession Still a Crime in New York?
The short answer is “yes”—while New York law does allow for medical use of marijuana under limited circumstances, possession outside that context is illegal. However, the consequences for possession of marijuana in New York are far less severe than the consequences for possession of controlled substances.
Whether possession of marihuana is a violation, a misdemeanor or a felony depends on both the quantity possessed and the circumstances of the possession. (Yes, New York refers to “marijuana” as “marihuana.”)
Non-Criminal Possession of Marijuana
Unlawful Possession of Marihuana (UPM) is a violation. That means a conviction of UPM in New York does not result in a criminal record.
The statute, which prohibits “knowingly and unlawfully possessing marihuana,” sets forth the following possible penalties:
First UPM Offense– A fine of not more than $100;
Second UPM Offense (within 3 years) – A fine of not more than $200; and
Third UPM Offense (within 3 years) – A fine of not more than $250 and up to 15 days in jail
However, as a practical matter, UPM alone is unlikely to result in jail time. In my years as a Manhattan District Attorney, I do not recall ever seeing a person sentenced to jail for UPM.
UPM with Other Criminal Charges
Although UPM alone rarely if ever carries jail time, a person charged with UPM will likely be facing other charges as well. Possession of small amounts of marijuana is most often discovered in the course of an arrest for another crime.
Misdemeanor Possession of Marijuana
Possession of more than 25 grams but not more than 8 ounces of marijuana is a misdemeanor, as is open possession of any amount of marijuana.
Criminal Possession of Marihuana in the Fifth Degree
The Fifth Degree crime is charged in two situations:
Possession of more than 25 grams but not more than 2 ounces of marijuana; or
Open possession of any amount of marijuana, burning or not
As a class B misdemeanor, Criminal Possession of Marihuana in the Fifth Degree carries a maximum possible sentence of 90 days in jail. It is often possible to avoid jail time for a first offense, but it is preferable to avoid a conviction altogether, since a class B misdemeanor is a criminal charge and conviction will result in a criminal record.
Criminal Possession of Marijuana in the Fourth Degree
Criminal Possession of Marihuana in the Fourth Degree is charged when the defendant is alleged to have possessed more than 2 ounces, but not more than 8 ounces, of marijuana. The Fourth Degree crime is a class A misdemeanor, carrying a maximum sentence of 1 year in jail.
Felony Possession of Marijuana in New York
The degree associated with a felony marijuana possession charge in New York is determined by the quantity of marijuana alleged to have been possessed. Charges and possible penalties are:
More than 8 ounces but not more than 16 ounces is charged as Criminal Possession of Marihuana in the Third Degree, a class E felony;
More than 16 ounces but not more than 10 pounds is charged as Criminal Possession of Marihuana in the Second Degree, a class D felony; and
More than 10 pounds is charged as Criminal Possession of Marihuana in the First Degree, a class C felony
Sentencing in Possession of Marijuana Cases
The maximum penalties for marijuana possession range from no jail time for a first UPM offense to up to 15 years for the First Degree crime. However, alternatives are often possible in marijuana possession cases, including plea bargains to lesser offenses, non-criminal resolutions, and a special alternative known as a Marihuana Adjournment in Contemplation of Dismissal (MACD).
Marihuana Adjournment in Contemplation of Dismissal (MACD) in New York
In New York, many low-level marijuana possession charges are resolved with a Marijuana Adjournment in Contemplation of Dismissal (MACD). Assuming the defendant successfully completes all requirements under the MACD, the charges will be dismissed and the case will be sealed in 12 months.
MACDs are employed most often in UPM and Fifth Degree Criminal Possession of Marihuana cases, but may also be an option for other marijuana-related crimes, so long as the defendant has not previously benefitted from an MACD.
Search and Seizure in Marijuana Possession Cases
Possession of marijuana is most often discovered and charged as the result of a police search. Because the constitutions of both the United States and the state of New York limit the circumstances under which law enforcement may conduct a search and the scope of such searches, it is often possible to fight possession charges by challenging the legality of the search.
The "fruit of the poisonous tree" doctrine requires that any evidence collected as the result of an illegal search excluded from evidence. In a marijuana possession case, this would mean that the marijuana itself could not be introduced as evidence. Often the loss of this evidence prompts the prosecution to dismiss the marijuana possession case.
Criminal Sale of Marihuana
Like Criminal Possession of Marihuana, the seriousness of a Criminal Sale of Marihuana charge in New York is generally determined by quantity.
Misdemeanor Sale of Marijuana
The least serious marijuana sale charge is Criminal Sale of Marihuana in the Fifth Degree, which is a class B misdemeanor. However, this crime is charged in only one limited circumstance: when the quantity was 1 marijuana cigarette or less than 2 grams and no money exchanged hands.
With that one limited exception, selling any amount of marijuana is at least a class A misdemeanor.
Felony Sale of Marijuana
Sale of any amount of marijuana greater than 25 grams is a felony. Criminal Sale of Marijuana in the Third Degree, charged in connection with quantities between 25 grams and 113 grams (4 ounces), is a class E felony. However, if the marijuana is sold to a person under the age of 18, the charge is bumped up to a class D felony.
Sale of between 4 and 16 ounces of marijuana is charged as Criminal Sale of Marijuana in the Second Degree, a class D felony, and the First Degree crime, charged in connection with the sale of any amount of marijuana in excess of 16 ounces, and is a class C felony. This differs significantly from the treatment of the sale of controlled substances, which is always a felony and may carry a sentence of up to 20 years in prison for a first offender.
Talk to a Marijuana Possession Attorney as Soon as Possible
Possible penalties and indirect consequences for Criminal Possession of Marihuana and related charges can be serious. Having an experienced criminal defense attorney on your side increases your options and your opportunity to protect your rights and your future.
If you’ve been charged with a marijuana-related crime, contact my office right away to learn more about your options, from negotiating for an MACD or reduced charge to fighting the charges against you at trial.
