While many states have decriminalized the use and sale of marihuana, New York has not and laws regulating the drug are still applicable. This means people visiting the state are still subject to New York Penal Code § 221.55, which is described as the criminal sale of marihuana in the first degree. Whether you’re a resident or visitor, it’s wise to be familiar with this law before you put your liberty at risk.
Defining Criminal Sale of Marihuana in the First Degree
Selling large amounts of more addictive and harmful drugs, such as heroin, cocaine, and other drugs, does carry more severe penalties, but selling large amounts of marihuana is still illegal. The New York Penal Code § 221.55 defines a “large amount” of marihuana as more than 16 ounces. This includes a mixture that includes marihuana as an ingredient, where the total size is over 16 ounces.
Additionally, New York Penal Code § 220.001 defines what it means to sell. The term is used to describe transactions that don’t necessarily involve the exchange of money for the drug. Under the statute, the term is also defined as exchanging the drug for another commodity or giving the drug away to another individual. The law further explains that intending to dispose of the drug in one of these manners or enlisting someone else to sell it for you also constitutes a violation of the drug.
This means that you may still be charged with criminal sale of marihuana in the first degree, even if you were arrested before the sale was completed. The only requirement in this case is that the perpetrator has handed the drug to another individual. This is enough to establish that sale of the drug was intended.
Defending Against Criminal Sale of Marihuana in the First Degree
A violation of New York Penal Code § 221.55 is typically charged as the result of police investigations that start off with an anonymous tip. For example, a citizen might call the police to report that Danny is always selling marihuana on a specific street corner. Upon watching Danny sell several smaller quantities of the drug at that location, the police obtain a search warrant to search his home. There, the investigators find four pounds of marihuana. While police haven’t observed Danny trying to sell the entire four pounds, they have viewed enough transactions of smaller quantities to establish his intent to sell the entire supply.
Often, the best defense against a charge of criminal sale of marihuana in the first degree is to show that the intent was not to sell more than 16 ounces of the drug. When a defendant can disprove this allegation, there is no longer a violation of New York Penal Code § 221.55.
Alternatively, a defendant may be able to establish that he was the victim of entrapment. This type of investigation often requires police officers to pose as drug buyers in order to establish a sale of marihuana. In some of these cases, the officers posing undercover are too aggressive in instigating the exchange. This is called entrapment and a defendant may be able to claim he was coerced or forced into participating in the sale.
The criminal sale of marihuana in the first degree is a class C felony, which carries a prison term of up to 15 years. The least a defendant can expect to serve is seven years, depending on his or her criminal history. Someone with no previous convictions may be sentenced to just three and a half years of imprisonment. In any case, a conviction also carries a fine of up to $15,000.
If you are facing a charge of criminal sale of marihuana in the first degree, you should consult a criminal defense attorney as soon as possible. An experienced lawyer will know how best to defend you to minimize your penalties. Even if a lawyer can’t achieve an acquittal, he may be able to arrange a deal for a lesser sentence.
