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Criminal Sale of Marijuana: Penal Law 221.35, Penal Law 221.40, Penal Law 221.45, Penal Law 221.50, and Penal Law 221.55

The Law Office of Matthew Galluzzo, PLLC Team

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 a Desk Appearance Ticket (DAT), you should strongly consider contacting the attorneys at The Law Office of Matthew Galluzzo. 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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