- Marijuana Defense
Marijuana Defense Lawyer in Long Island, NY
If you are charged with any marijuana violation or criminal charge in Nassau County or Long Island, or anywhere in New York call us to discuss your case. Marijuana is also called weed, pot, or cannabis. The legislature spells it “marihuana” throughout New York’s statutory scheme.
Conviction of a marijuana charge can make you ineligible for financial aid and can have other long-lasting collateral consequences that last long after the court case is closed. Stephanie Selloni works hard to protect her clients from the harsh consequences of New York's law prohibiting marijuana possession. Law Office of Stephanie Selloni focuses on criminal cases in Garden City, Hempstead, Mineola, Westbury, Floral Park, and the surrounding areas in Nassau County, Long Island.
Stephanie Selloni also represents clients in a variety of drug crimes throughout Suffolk County and in all five boroughs of New York City. Contact her today at 516-972-1212 to schedule your free consultation.
Marijuana Defense Issues in New York
- The ACOD in a Marijuana Possession Case
- Legislative History and Decriminalizing Marijuana in New York
- Reducing Penalties for Marijuana Sale and Possession
- Unlawful Possession of Marijuana Under PL 221.05
- Possession of Marijuana “In a Public Place”
- Sale of Marijuana in New York
- Finding a Marijuana Attorney for Nassau County, NY
If there is no viable motion to suppress the evidence, then the goal in many of these cases is getting the case dismissed through an “ACOD.” For certain individuals, including professionals in the health care profession, military or law enforcement, the consequences to the ACOD may be unacceptable. In those cases, it may be in the client’s best interest to fight the charges, particularly if the marijuana was found only after a questionable stop, detention or search.
Other defenses revolve around whether sufficient evidence shows constructive or actual possession.
ACOD stands for "adjournment in contemplation of dismissal." If the court grants an adjournment in contemplation of dismissal it is not a conviction or an admission of guilt. After the dismissal of the case, the arrest and prosecution is deemed to be a nullity. The person accused is then restored to the status he occupied before his arrest, and prosecution although the question of guilt or innocence remains unanswered.
The court can order that the case be “adjourned in contemplation of dismissal” upon agreement by the defense and prosecution. After the ACOD is ordered, the defendant is released on his own recognizance. The prosecution only has one year to put the case on the calendar to ask the court to restore the charges and allow the prosecution to proceed. During this time period, the right to a speedy trial is tolled. See CPL § 30.30(4)(h). During that time, the court can require the defendant to complete certain conditions including community service.
A new arrest for any offense during that time period is the main reason that a case is restored. If the case is not restored during that time period, then at the end of that time period the case is automatically dismissed by the court. Even a person charged with the "sell" of marijuana is entitled to an ACOD for a first offense if he is charged with selling less than 25 grams and the buyer is 18 years of age or older.
Legislative History and Decriminalizing Marijuana in New York
Article 221 was created to deal with marijuana offenses. The purpose behind the legislation was to reduce the penalties and punishments for the possession and sale of marijuana in the State of New York. That purpose was emphasized by the excision of the marihuana offenses from article 220. In the unconsolidated portion of the legislation, the Legislature expressed its findings and its purpose:
“The legislature finds that arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use.'
"The legislature finds that the penalties and procedures provided in this act are more reasonably appropriate to the nature of marihuana.'
"The legislature does not encourage or condone the recreational use of marihuana or any other drug. Rather, the purpose of this act is to insure that the many people in New York who commit the conduct which this act makes a violation not be subjected to unduly harsh sanctions.”
Under the “Marihuana Reform Act of 1977,” marijuana is removed from the definition of “controlled substances” for purposes of Penal Law article 220. One exception to this general rule is that “concentrated cannabis” is still defined under Article 220 as a controlled substance.
By far, the most common marijuana charge in the State of New York is an allegation of the Unlawful Possession of Marijuana under 25 grams. The New York legislature has “decriminalize” the possession of a small amount of marijuana held for personal use. This is considered a violation and not a criminal offense under Penal Law Section 221.05.
Furthermore, an appearance ticket is the only means of charging a person with the violation. In other words, the police are not allowed to make a formal arrest for the violation according to CPL 150.75 (at least if they do not allege that it was burned or possessed in a public place).
For a first offense within the last three years, the violation is punishable only by a fine of not more than one hundred dollars. The “plain language of Penal Law § 221.05 precludes the imposition of a term of imprisonment where a defendant fails to pay the fine imposed for unlawful possession of marihuana.” People v. Geddes, 134 A.D.2d 279, 520 N.Y.S.2d 608 (2nd Dept. 987).
Second Violation Within Three Years
If the person accused of a violation for possession of marijuana has previously been convicted of an offense under Article 220 or 221 that was committed within a three (3) year period immediately prior to this violation, then the punishment is (a) a fine of not more than two hundred dollars.
Third or Subsequent Violation Within Three Years
If the person was previously convicted of two such offenses within a three (3) year period immediately prior to this violation, then the punishment shall be a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days, or both.
As a practical matter, since this violation is a non-printable offense and because upon conviction the records are sealed, the court and prosecution often do not know of the prior violations.
Criminal Possession of Marijuana in the Fifth Degree
Although the New York legislature expressed its desire to “decriminalized” the possession of a small amount of marijuana held for personal use, the police have an easy way to avoid that result if they allege the possession of “in a public place.” 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:
- the possession of any amount of marijuana where it is either burned “in a public place” or otherwise “open to public view”; or
- the amount of marijuana possessed was more than 25 grams but less than 2 ounces.
Courts have found that the person is in a public place when sitting in a car that a law enforcement officer had stopped for a routine traffic violation. In that case, when the officer saw the marijuana sitting in plain view inside the vehicle it was considered to be possessed in a public place. 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).
The courts have reached this conclusion, in part, because 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). The courts have also interpreted this provision to mean that anyone on a sitting still or moving on a highway would be in a public place.
Riding a bicycle on a public street would be considered to be in a public place. Even walking on a public street could be considered “in a public place.” This board interpretation of the term “in a public place” leads to selective enforcement by law enforcement officers.
Officers often make an unlawful arrest under these circumstances by ordering the person detained on the street to empty their pocket and then alleging 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. If successful, the motion can lead to an outright dismissal of the charges.
Criminal Possession of Marijuana in the Fourth Degree
Criminal possession of marijuana in the fourth (4th) degree is a class A misdemeanor when the amount possessed is more than 2 ounces but less then 8 ounces.
Criminal Possession of Marijuana in the Third Degree
Criminal possession of marijuana in the third (3rd) degree is a class E felony when the amount possessed is more than 8 ounces but less then 16 ounces.
Criminal Possession of Marijuana in the Second Degree
Criminal possession of marijuana in the second (2nd) degree is a class D felony when the amount possessed is more than 16 ounces but less then 10 pounds.
Criminal Possession of Marijuana in the First Degree
Criminal possession of marijuana in the first (1st) degree is a class C felony when the amount possessed is more than 10 pounds.
If you were charged with any marijuana offense for the sale of marijuana, the penalties and punishments are serious. Many sells of marijuana cases involve the use of an undercover detective or confidential informant. Police officers throughout Nassau County engage in elaborate sting operations. The charges depend on whether money or other consideration was exchanged, whether the exchange involved a minor, and the aggregate weight of the marijuana exchanged in the transaction.
Criminal Sale of Marijuana in the Fifth Degree - Class B Misdemeanor § 221.35
New York law defines the term “sell” under Penal Law § 220.00(1) to mean any transfer from one person to another regardless of whether money or other consideration is exchanged. Therefore, even a joint passed between friends will technically constitute “sale” under that board definition. Therefore, the legislature created the criminal sale of marijuana without consideration as a class B misdemeanor if the amount exchanged without consideration is one marihuana cigarette or two grams of marijuana or less.
Note: If the marijuana cigarette or amount less than 2 ounces is given (either with or without consideration) to a person under the age of 18, then the crime can be charged as a class D felony (often called “criminal sale of marihuana in the second (2nd) degree under Penal Law Section 221.50).
Criminal Sale of Marijuana in the Fourth Degree - Class A Misdemeanor § 221.40
If the exchange involves money or other consideration when one person transfers a marijuana cigarette or the specified amount of 2 ounces or less to another person, then the case can be charged as a class A misdemeanor under Penal Law § 221.40.
Note: If the marijuana cigarette or amount less than 2 ounces is give (either with or without consideration) to a person under the age of 18, then the crime can be charged as a class D felony (often called “criminal sale of marihuana in the second (2nd) degree under Penal Law Section 221.50).
Criminal Sale of Marijuana in the Third Degree - Class E Felony § 221.40
If the sale of marijuana involves more than 25 grams but less than 4 ounces, then the crime can be charged as criminal sale of marijuana in the third degree, a class E felony under Penal Law Section 221.40.
Criminal Sale of Marijuana in the Second Degree - Class D Felony § 221.50
If the sale of marijuana involves more than 4 ounces but less than 16 ounces or any quantity (even a single joint) to a person who is less than 18 years old, then the crime can be charged as criminal sale of marijuana in the second degree, a class D felony under Penal Law Section 221.50.
Criminal Sale of Marijuana in the First Degree - Class C Felony § 221.55
If the sale of marijuana involves more than 16 ounces of marijuana, then the crime can be charged as criminal sale of marijuana in the first degree, a class C felony under Penal Law Section 221.55.
If you were arrested or charged with a marijuana offense in Long Island, contact the Law Office of Stephanie Selloni. We work hard to protect our clients charged with a variety of marijuana offenses from a simple unlawful violation to a more serious criminal offense for possession or sale in Garden City, Westbury, Hempstead, Floral Park, Glen Cove, and the surrounding areas in Nassau County.
Even low-level marijuana charges can come with serious consequences. Don't face the judge alone. Call us at 516-972-1212 for a free evaluation of your defense options going forward.