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Possession of Marijuana in a Public Place 

Criminal possession of marijuana in the 5th degree is a Class B Misdemeanor. The criminal charge comes with criminal consequences that can last long after the case is resolved in court. Any drug conviction is a serious matter that can impact your ability to receive financial aid, rent an apartment or even continue in your chosen profession.

The mere possession of a small amount of marijuana (often called "weed" or "pot") has been “decriminalized” in New York. Unfortunately, the police often trump up the allegations to elevate the charge from "unlawful possession" to "criminal possession" by claiming that the cannabis was spotted in plain view in a public place. The best way to fight these cases is often with an aggressive defense that challenges those claims and the legality of the stop, prolonged detention and unreasonable search.

Garden City Marijuana Possession Lawyer

Call an attorney at the Law Office of Stephanie Selloni at 516-972-1212 to discuss your case. We focus on marijuana and other drug charges in Mineola, Garden City, West Bury, and Nassau County. We work hard to help our clients fight for the absolute best result given the particular facts and circumstances of the case.


Info on Possession in Public Place Charges


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Penal Law Section 221.10 - Criminal Possession of Marijuana

Under Penal Law Section 221.10, the charge of criminal possession of marijuana in the fifth degree is a class B misdemeanor. This offense requires either:

  1. the possession of any amount of marijuana where it is either burned “in a public place” or otherwise “open to public view”; or
  2. the amount of marijuana possessed was more than 25 grams but less than 56.7 grams (2 ounces).

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Possession of Marijuana “In a Public Place”

The police officers have often ignored the efforts of the New York legislature when it decriminalized the possession of a small amount of marijuana. Police officers get around this by alleging the marijuana was in plain view in a public place. Common sense suggests that these cases would be rare since most people would conceal their possession of marijuana while they are in public. Not only have the police officers gone to great lengths to suggest the marijuana was in plain view in a public place, but the courts have gone to great lengths to uphold some of these decisions on appeal.

For instance, the courts have found that a person sitting in a car holding a baggy of marijuana is guilt of the criminal version of marijuana possession - even though the officer stopped the car for a traffic infraction. See People v. Jackson, 18 N.Y.3d 738, 944 N.Y.S.2d 715, 967 N.E.2d 1160 (2012) (the defendant was sitting the vehicle and observed by the stopping officer holding a clear zip lock baggy of weed in his hand in plain view). Since that decision, it is amazing how many police officers will allege similar facts.

The basic premise in these cases revolves around a recognition that Penal Law § 240.00(1) defines a “public place” to mean “a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities....” Furthermore, the term “transportation facility” includes any “conveyance ... used for ... public passenger transportation” such as an “aircraft, watercraft, railroad cars, buses ....” under Penal Law § 240.00(2).

In some cases, the courts have suggested a broader interpretations to include anyone on any highway or public road is in a public place. This board interpretation of the term “in a public place” leads police officers to lie or exaggerate the facts.

Police officers in Nassau County often make an arrest under these circumstances after ordering the person detained on the street to empty their pocket. When the pockets are emptied, the officer will allege the substance was seen in plain view. In these cases, where law enforcement officers act in an unreasonable manner in violation of the law, the person accused can file a motion to suppress the evidence. The motions allege that the evidence was seized illegally under the Fourth Amendment of the United States Constitution. If successful, the motion can lead to an outright dismissal of the charges.


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Motion to Dismiss the Charging Document as Facially Insufficient

In certain cases, the defense attorney can move to dismiss the complaint as facially insufficient. This is particularly true when the complaint does not allege that the marijuana was actually seen in public view. The courts have recently recognized the element of “public view” must be supported by something more than a conclusory assertion.

Instead of just a conclusory statement, it must be supported by facts that are articulated by the police officer which raise the inference “that any other member of the public could also have seen the marihuana from the same vantage point' “ as the arresting officer. See People v. Mejicanos, 40 Misc.3d 23, 25 (App Term, 2d, 11th & 13th Jud Dists 2013) (quoting People v. Jackson, 18 NY3d 738, 748 (2012)).

This distinction is important because any reliance upon the statement “open to public view” to satisfy this statutory element would cause “impermissible speculation to fill in the gaps” created by the complaint. Id. at 26. The mere fact that “the marihuana was recovered from the defendant's person in a public place does not suggest that it was also open to public view.”  People v. Campbell, 41 Misc. 3d 143(A) (N.Y. App. Term. 2013)(dissenting opinion). In other words, the officer must (at a minimum) be able to articulate how the marihuana would have been visible to a passerby.


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Nassau County Criminal Possession of Marijuana Attorney

If you were charged with the criminal possession of marijuana in the 5th degree, a class B misdemeanor, for possessing marijuana in plain view in a public place, then contact our office for a free, confidential consultation. We help our clients mount an aggressive defense when police officers engage in questionable tactics. If the police officer in your case conducted an illegal stop, unnecessarily prolonged the detention, or made an unreasonable search, then call us to discuss the case.

We are particularly experienced in fighting these cases for the best results in the courtroom throughout Long Island and Garden City. Contact us today to schedule a free consultation at 516-972-1212.