In New York state, it is illegal to
possess and/or sell marijuana. Unsurprisingly, the penalties for selling marijuana
are generally more severe than they are for merely possessing. Most people
do not realize, however, that the definition of “sell” allows
police to charge people with selling marijuana even though the “buyer”
did not pay the “seller” any money. Indeed, the definition
of “sell,” from
Penal Law Section 220.00(1), means “to sell, exchange, give or dispose or to another, or to
offer or agree to do the same.” (This definition applies to narcotics,
controlled substances, and marijuana cases.
See Penal Law Section 221.00). Thus, simply agreeing to sell marijuana, without money or marijuana
changing hands, is encompassed by this definition. In fact, the definition
of sell would allow a police officer to charge someone with selling marijuana
for merely giving a joint to a friend, or even for just passing it to
another person for him to hold.
The least serious marijuana sale crime is Criminal Sale of Marihuana in
the Fifth Degree (Penal Law Section 221.35) (Note: the Penal Law actually
still uses the antiquated “marihuana” spelling rather than
the more-commonly used “marijuana”). That crime makes it a
Class B misdemeanor punishable by up to 90 days in jail to “knowingly
and unlawfully sell, without consideration, one or more preparations,
compounds, mixtures or substances containing marihuana and the preparations,
compounds, mixtures or substances are of an aggregate weight of two grams
or less; or one cigarette containing marijuana.” In cases where
the amount of marihuana sold exceeds two grams or one cigarette, the person
can be charged with Criminal Sale of Marihuana in the Fourth Degree, Penal
Law Section 221.40, a Class A misdemeanor punishable by up to 1 year in jail.
Serious weight sales can merit felony charges punishable by state prison
time. Specifically, it is a Class E felony to sell over twenty-five grams
of marijuana (Criminal Sale of Marihuana in the Third Degree, Penal Law
Section 221.45), a Class D felony to sell more than 4 ounces (Criminal
Sale of Marihuana in the Second Degree, Penal Law Section 221.50), and
a Class C felony to sell more than sixteen ounces (Criminal Sale of Marihuana
in the First Degree, Penal Law Section 221.55).
Finally, it is also a Class D felony to knowingly and unlawfully sell marijuana
to a person less then 18 years old (Criminal Sale of Marihuana in the
Second Degree, Penal Law Section 221.50).
Undercover police officers routinely arrest people for selling marijuana
in buy-and-bust and observation operations. In the former, undercover
officers use pre-recorded buy money to purchase marijuana on the street
themselves from suspected dealers. In the latter, officers watch suspected
dealers in the hopes of seeing them engage in a marijuana sale, and then
attempt to arrest both the buyer and the seller to make their case.
If you or a loved one have been arrested for selling marijuana, or even
just given aDesk Appearance Ticket (DAT), you should strongly consider contacting the attorneys at
Galluzzo & Arnone LLP. They have tremendous experience representing individuals charged with
these types of cases all over New York City and the surrounding areas,
and as former prosecutors, they are intimately familiar with the investigative
techniques employed by law enforcement officers.
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