Unlawful Possession of Marijuana

LOWER LEVEL MARIJUANA CHARGES IN NEW YORK: NEW YORK PENAL LAW § 221.05

The most distinct difference between marijuana possession charges brought under NYPL § 221.05 rather than NYPL §§ 221.10-30, is that § 221.05, the lowest level of marijuana possession, is not a crime in New York State. The charge brought under § 221.05 is unlawful possession of marijuana, not criminal possession. While possession of marijuana is never legal in New York, it is important to note the distinction between an action that is unlawful versus one that is criminal.

Unlawful Possession of Marijuana is a violation, not a crime, on the same level as Disorderly Conduct. Being convicted of this offense will not result in a criminal record, however the conviction will still appear on a person's criminal history, aka their "rap sheet."

A person can be convicted under this statute when they merely possess marijuana. There is no requirement that the marijuana be in public view, or burning; the only requirement is that the marijuana is in the person's possession. For the purposes of this statute, being in possession means to literally have possession of the marijuana, in a pocket for example, or to have immediate control over an area where marijuana is recovered, such as the center console of a vehicle if you are driving that vehicle.

The most common example of how this offense is charged is that an individual is being placed under arrest for an unrelated action, and during the course of that arrest, the police officer conducts a search or frisk of the person to ensure that the person being arrested does not have any weapons. During the course of that search, the police officer uncovers a bag of marijuana, and tacks on the Unlawful Possession of Marijuana charge to whatever else the person was arrested for.

In that situation, even if the prosecutor later determines that they no longer wish to proceed with the charges stemming from the underlying arrest, they can still move forward with the Unlawful Possession of Marijuana charges, provided the recovery was based on a valid and lawful search. In order to preserve your rights, it is important to hire an attorney who is intimately familiar with the law concerning searches and seizures, and who will fight for suppression of any illegally recovered contraband.

The top New York marijuana possession attorneys at the Law Offices of Jeffrey Lichtman have years of experience successfully litigating search and seizure issues. If marijuana was recovered during an illegal search, we will make sure it cannot be used to convict you. Call our office today at (212) 581-1001 for a free case evaluation.