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Fifth Degree Criminal Marijuana Sale: New York Penal Code § 221.35

Fifth degree criminal marijuana sale is the least serious of the five offenses named in New York’s Penal Code that relate to the sale of marijuana. A violation of New York Penal Code 221.35 is defined as:

  1. The sale of two grams or less of marijuana or one marijuana cigarette,
  2. The sale of the two grams or less of marijuana or one marijuana cigarette was without consideration or payment, and
  3. The sale was carried out with knowledge and against the law.

This code of the law is directed to people who who facilitate others engaging in the intake of marijuana.

Hypothetical Case

Suppose a man and a woman are standing together on the sidewalk in an area of a city known for drug activity. They are observed by a police officer who sees the man gives the woman what looks like a marijuana cigarette. It turns out that the police officer was correct about the contents of the cigarette.The police officer apprehends the two and arrests the man for fifth degree criminal sale of marijuana. The police officer also arrests the woman for fifth degree criminal possession of marijuana.

Possible Defenses

Lack of probable cause. Probable cause is present when law enforcement officers have reason to believe that a crime had been committed. In New York state, probable cause must be present to conduct a legal search of an individual’s person, home, car, office, or other property. However, if the assumption of probable cause can be shown to be unsupported, materials confiscated during the search, such as marijuana in this case, is not permissible as evidence, thus creating the basis for compelling the prosecuting attorney to withdraw the charge.

Other lines of defense. Experienced defense attorneys who have handled a wide variety of drug-related cases may be able to employ other defensive tactics that lead to dismissal or reduction in the charge.

Possible Sentence

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

Probation. To the sentence, the judge may add a probationary period of three years for a person found guilty of the crime of fifth degree criminal sale of marijuana.

NY Penal Code § 221.35: Fifth degree criminal marijuana sale

To recap, a person is guilty of fifth degree criminal marijuana sale when that person unlawfully and knowingly sells marijuana or marijuana substances, compounds, preparations, or mixtures and no money exchanges hands (i.e., no consideration). The quantity is two grams or less or one cigarette containing marijuana.

Lawyer to Defend Against the Charge of fifth Degree Criminal Marijuana sale

To effectively defend against a charge of fifth degree criminal marijuana sale, it is important that you immediately obtain legal counsel to proactively protect your interests.

The Barry C. Weiss P.C. law firm has aggressively advocated on behalf of individuals charged with fifth degree criminal marijuana sale, as well as more serious drug crimes. Also, the Elliot Adler PC law firm capably defends clients accused of controlled substance crimes in New York state. The Elliot Adler PC law firm has a highly qualified team of attorneys that has successfully represented clients in several types of marijuana and drug-related cases, such as the sale, possession or manufacture of controlled drugs, such as marijuana, crack, cocaine, Vicodin, LSD, PCP, OxyContin, heron, and methamphetamine.

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 controlled substance possession: § 220.06
  2. Fifth degree criminal controlled substance sale: § 220.31
  3. Fifth degree criminal marijuana possession: § 221.10
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