How First Time Offenders Can Defend Against New York Marijuana Charges

Martin Lawrence Arrested In Street - How First Time Offenders Can Defend Against New York Marijuana Charges

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As part of my practice of the defense of Dwi and other traffic associated matters I often have to deal with other drug offenses. It is all too common that a bong, pipe, and/or other paraphernalia (vaporizers, spoons, hammers, chillums, bubblers, sidecars, sherlocks, raydiators, tubes, bats, headies) are found inside the car. All the police have to do is scrape together enough resin/residue, and someone else criminal charge is added to the fray.

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Martin Lawrence Arrested In Street

Over the procedure of my years of practicing in the Fingerlakes I have defended many college students from Suny Cortland, Suny Binghamton, Cornell University, Ithaca College, Keuka College, etc. Marijuana use seems to go with college like cereal goes with milk. Some habitancy think that New York State has decriminalized marijuana, sometimes it is only expensed as a violation, but even in relatively small quantities it can be expensed as a misdemeanor or even as a felony (if sold to minors).

There were 92,800 arrests for Marijuana in New York while 2007. Males aged 15 to 24 made up 56% of those arrested, and 70% of those males were white.

Note: After any official arrest in an automobile in Nys the entire car is branch to hunt top to bottom, inside and out. So much for your 4th amendment proprietary in New York State.

Outside, in a social park or on the road we have a separate story. Police will sometimes make a false statement ie. Lie to get an arrest. I know, as unbelieveable as that may sound Virginia, it happens. Law promulgation will tell college kids that they "have to" make a search. That if they want to avoid an arrest they should empty their pockets, and to show them what they have or else? Legally they could only pat you down for weapons, but to go into your pockets requires permission or probable cause, but once the marijuana is exposed to social view we have a full blown misdemeanor.

Here is a ranking of the New York State Pot Laws from least severe to more severe (in terms of penalties and consequences):

1. Upm under Penal Law 221.05: Unlawful proprietary of Marijuana is not a crime it is merely a violation But since marijuana is a controlled substance under Federal Law a plea of guilty will make you ineligible for Federal Financial Aid (thank you President Clinton) for one year. Side note: Marijuana is not determined a controlled substance under New York State Law but we are discussing Federal learner Loans, Federal Work Study Monies, Federal Grants, and the Federal Hope College Credit.

Upm is proprietary of less than 25 grams of marijuana. In the majority of these cases (with first time offenders) your attorney can move for an Acd (adjournment in contemplation of dismissal) or a right removal of the charge. The judge will set the term of staying out of issue (no new criminal charges) For either 6 Months Or One Year. It is in his discretion. Also in his discretion is either there is a substance abuse evaluation. Some judges also wish community service.

The next level up of Marijuana offense is:

2. Cpm under Penal Law 221.10: Criminal proprietary of Marijuana in the 5th degree. This where the marijuana is either open to social view, burning, or where the amount is over 25 grams but less than 2 ounces. Cpm is a crime. It is class B misdemeanor.

The next level up of Marijuana offense is:

3. Cpm under Penal Law 221.15: Criminal proprietary of Marijuana in the 4th degree. This is where you have more than 2 ounces but less than 8 ounces. Now that's what the District Attorney will say is real weight, and they are reasoning at this point you are dealing drugs and not just possessing them for personal use. Cpm in the 4th is a class A misdemeanor.

4. Penal Law 221.35 is for the Sale of Marijuana. All that is principal is less than 2 grams or one joint/blunt. It is a Class B misdemeanor. Sale is a very loose term under the statute. Sale also includes gifting or an change of anything, as no "consideration" is needed under the statute to reconsider it a sale.

5. Penal Law 221.40 is for the Sale of Marijuana. Less than one ounce. It is a Class A misdemeanor.

The next two levels are where we move from misdemeanor level offenses (less than a year in jail) to felony level offenses (more than one year in jail). Misdemeanor offenses can be handled by City, Town, or village Courts. Felony charges are only handled at the County Court level.

* Beware that Sale of More than One Ounce moves the offense to Class E Felony Status in New York State (punishable by up to 3 years in State Prison).

* Beware of New York State Penal Law 221.50. Sale of Marijuana to a minor (a person less than 18 years old). It is a Class D Felony Status. Which is punishable by a term of 4 to 7 years in State Prison, that's not county jail.

I would like to end off with the Good News about amount 1 straight through 5 above:

That Penal Law 221.05 Upm (Unlawful proprietary of Marijuana), Penal Law 221.10 Cpm (Criminal proprietary of Marijuana) in the 5th degree, Penal Law 221.15 Cpm (Criminal proprietary of Marijuana) in the 4th degree, Penal Law 221.35 Sale of Marijuana, and Penal Law 221.40 Sale of Marijuana are all covered under the First Time Offender Acd statute.

New York Criminal procedure Law Section 170.56.

Captioned as "Adjournment in contemplation of removal in cases in provocative marijuana."

If a person qualifies under the statute a appeal can be made by his attorney, and then his marijuana charges may be dismissed in the future, and all his official records and papers relating to his arrest and prosecution, either on file with the Court, the police, or the New York State department of criminal justice services will be sealed and not made ready to the social or secret agencies.

Upon the granting of such an order by the Court, the arrest and prosecution can be determined and deemed a nullity (as if they never happened) and the person shall be restored to his or her pre-arrest status.

If of procedure person has has other prior charges (relating to marijuana and/or other drugs) then his attorney can potentially negotiate to some other non-criminal disposition, such as disorderly conduct. This is a violation and all the records of the arrest and prosecution would be sealed at the local level.

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