Arrested for Possessing a Small Amount of Marijuana
This post examines the New York City Desk Appearance Ticket for Marijuana
Possession given in cases involving possession of a small amount of marijuana.
A typical scenario will involve a group of people gathering somewhere
outdoors, outside a bar, or simply walking down the street, passing around
a joint, marijuana cigarette, or a pipe containing burning marijuana.
The police would appear out of nowhere, seize the drugs, and arrest the
people. Arrestees will typically be brought to the local police precinct,
fingerprinted, photographed, and then issued a Desk Appearance Ticket.
This ” Marijuana D.A.T.” will oftentimes charge a person with
a marijuana misdemeanor. The ticket itself will say: Top Offense Charged:
PL 221.10 01. That charge, in full form, reads as follows:
§ 221.10 Criminal possession of marihuana in the fifth degree. A person
is guilty of criminal possession of marihuana in the fifth degree when
he knowingly and unlawfully possesses: 1. marihuana in a public place,
as defined in section 240.00 of this chapter, and such marihuana is burning
or open to public view; or 2. one or more preparations, compounds, mixtures
or substances containing marihuana and the preparations, compounds, mixtures
or substances are of an aggregate weight of more than twenty-five grams.
Criminal possession of marihuana in the fifth degree is a class B misdemeanor.
Elements of Marijuana Charge
In most situations where a person is arrested for smoking marijuana on
the street he or she will be charged with subsection 1. The key elements
under that subsection are 1) that
the marijuana is possessed in a public place, and 2) that the marijuana be
visible to the public. As a practical matter, “the public” here refers to the arresting
police officer or officers. Street arrests leading to prosecutions under
subsection 2 are less common because there it is the weight of the marijuana
that matters, not the fact that it is possessed in a public place. The
general observation here is that if the police officers can see the marijuana,
they will arrest under subsection 1. If they cannot see the marijuana,
chances are that the arrestee was not arrested on the street.
Governor Cuomo’s Recent Proposal to Decriminalize Marijuana Did not Pass
Governor Cuomo recently
attempted to decriminalize possession of a small amount of marijuana by making the “public” possession of marijuana on par with
the simple possession of marijuana, which is a violation, not a crime.
This proposal was blocked by the state legislature, but may be reconsidered
at the beginning of the new legislative session in January.
What the Marijuana D.A.T. Contains and What do to with a Marijuana D.A.T.
The D.A.T. will state the Arrest Precinct and contain tracking information
such as the DAT Serial No. and the OLBS Arrest-ID. The Serial number is
generated to allow the matter to be tracked through the court system whereas
the OLBS (“online booking system”) arrest number is primarily
generated for police purposes. The D.A.T. will summon the recipient to
the Criminal Court of the City of New York, usually in the county in which
the arrest was made. It will provide information about where to go and
instruct the recipient that failure to appear for the offense charged
can result in an arrest warrant. The arrestee will usually be asked to
sign the D.A.T. to acknowledge receipt and agreement to appear on the
time specified on the ticket. Other information contained in the D.A.T.
will be the arresting officer’s name, rank, oftentimes “POM,”
or “POF” (Police Officer Male and Police Officer Female, respectively)
and the officers Tax Reg number, which is a way of identifying the police
officer who made the arrest in the court and police computer network.
The D.A.T. will always be signed by the arresting officer.
You should bear in mind that — despite recent efforts at decriminalization
— if you appear in court and simply plead guilty to this criminal
charge, a class B misdemeanor, the result may be a permanent criminal
record. Thus, if you have received a desk appearance ticket charging you
with marijuana offenses, you should appear with
counsel experienced in handling marijuana cases in New York City courts.
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