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Fifth Degree Criminal Marijuana Possession: New York Penal Code § 221.10

Fifth degree criminal marijuana possession is a misdemeanor. A person is guilty of this crime because they were in a public place with the marijuana clearly visible and possibly lit for smoking in public. A person is guilty of this offense if they:

  1. Possessed the marijuana in a public place,
  2. Unlawfully and knowingly did so, and
  3. Were burning the marijuana or had it in public view.

Also, a person can be charged with fifth degree criminal marijuana possession if:

  1. A person was in possession of one or more compounds, preparations, mixtures, or substances containing marijuana,
  2. A person did so unlawfully and knowingly, and
  3. The marijuana was more than twenty-five grams in weight.
Hypothetical Case

Two men and a woman were at a happy hour in a neighborhood bar. After having a few drinks, they left the bar and walked down the street to a nearby alley where they lit and started smoking marijuana cigarettes. The police smelled the marijuana and found the trio in public view inhaling the marijuana. The two men and one woman could be prosecuted for fifth degree criminal marijuana possession as they were indulging their marijuana in public.

Possible Defenses

Lack of probable cause. The State of New York mandates that probable cause be evident in order to conduct a legal search of private property or person. To assert probable cause, law enforcement personnel must have reason to believe that someone has committed a crime. If a case can be made that discredits the presence of probable cause to justify a search, then materials taken during the search, such as marijuana in this case, is inadmissible as evidence.

The marijuana weighs less than 25 grams. Unless the marijuana weighed at least 25 grams, a person may not be prosecuted under New York Penal Code 221.10. If the defense can build a case that shows the amount of marijuana was less than the requisite 25 grams, they may be able to get the charges dismissed, unless the marijuana was visible in a public place. Then another defensive approach must be used.

Other lines of defense. Seasoned defense attorneys with extensive experience in drug-related cases may be able to identify other defensive tactics that would apply in a particular case.

Possible Sentence

Imprisonment. Fifth degree criminal marijuana possession is a Class B misdemeanor. If convicted, the maximum possible sentence is three months in prison.

Probation. Conviction of fifth degree criminal marijuana possession may also be penalized with up to three years of probation during which the convicted must report regularly to their probation officer and avoid known criminals who may have an adverse influence. If the probation rules are not followed, the consequence may be time in jail.

NY Penal Code § 221.10: Fifth degree criminal marijuana possession

To summarize, a person is guilty of fifth degree criminal marijuana possession when that person unlawfully and knowingly has marijuana in their possession, and:

  1. They are in a public place and such marijuana is open to public view or is burning, or
  2. More than 25 grams of one or more compounds, preparations, substances, or mixtures that have marijuana in them.
Lawyer to Defend Against the Charge of Fifth Degree Criminal Marijuana possession

While unlawfully possessing marijuana in small amounts is a violation and not a crime, possessing marijuana in quantities that are at least 25 grams in aggregate weight, is a more serious misdemeanor that may lead to more severe charges if the circumstances are not carefully analyzed by an experienced defense attorney. To effectively defend against the charge of fifth degree criminal marijuana possession, seeking legal counsel is strongly advised to make sure that the charges are not stair-stepped into more serious drug charges.

The Barry C. Weiss P.C. law firm has aggressively defended individuals charged with fifth degree criminal marijuana possession and more serious drug crimes. Moreover, Elliot Adler PC law firm effectively defends clients accused of any of the controlled substance crimes in the State of New York. The Elliot Adler PC law firm has a highly reputable defense attorney team that has successfully defended against all types of marijuana and drug-related offenses, such as the manufacture, possession or sale of controlled substances such as cocaine, methamphetamine, OxyContin, crack, PCP, Vicodin, LSD, marijuana, and heroin.

We can be reached at (212) 785-1300 or to schedule a no-obligation, free legal consultative meeting to evaluate your case.

Related Offenses

For additional information, refer to the following sections of the New York Penal Code:

  1. Fifth degree criminal sale of a controlled substance: § 220.31
  2. First degree criminal possession of a controlled substance: § 220.06
  3. Fifth degree criminal sale of marijuana: § 221.35
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