Criminal Sale of Marijuana in New York
Although several states have legalized marijuana sale and possession, criminal sale of marijuana remains a serious crime in New York and can result in a felony conviction. Criminal sale of marijuana is committed when someone unlawfully sells, exchanges, or gives marijuana, or any substance containing marijuana, to another.
The name of the offense, which contains the word sale, is highly misleading. You can be convicted of this offense even if you simply give away marijuana without receiving anything in exchange. The penalty and degree of the offense depend on the amount of marijuana sold and who the buyer is.
The following are examples of situations where charges of criminal sale of marijuana may be filed.
● Kate sells an ounce of marijuana to Scott.
● Kate sells a single joint containing less than one gram of marijuana to Scott.
● Kate gives away an ounce of marijuana to Scott for free.
● Kate offers to sell an ounce of marijuana to Scott (and can do so).
● Kate sells a cannabis-infused edible to Scott.
● Kate sells a cannabis-infused edible to Scott, who is less than 18-years old.
If any of the above situations sound similar to yours, keep reading to find out what you need to know about this serious offense, and why you should immediately seek legal counsel to minimize your risk.
Statutes Defining Criminal Sale of Marijuana in New York
Criminal sale of marijuana is organized into five degrees. The least serious version (fifth degree) is a class B misdemeanor. The most serious (first degree) is a class C felony.
- NY Penal Law § 221.35 – Criminal Sale of Marijuana in the Fifth Degree:
This occurs when a person unlawfully gives to another a substance containing less than two grams of marijuana or a single cigarette containing marijuana. You cannot be charged with this offense if you receive anything in exchange for marijuana. This is a Class B misdemeanor.
- NY Penal Law § 221.40 – Criminal Sale of Marijuana in the Fourth Degree:
This occurs when a person unlawfully sells, exchanges, or gives to another a substance containing marijuana. There is no weight requirement for this offense! This is a class A misdemeanor.
- NY Penal Law § 221.45 – Criminal Sale of Marijuana in the Third Degree:
This occurs when a person unlawfully sells, exchanges, or gives to another a substance which contains marijuana and weighs over 25 grams. This is a class E felony.
- NY Penal Law § 221.50 – Criminal Sale of Marijuana in the Second Degree:
This occurs when a person (a) unlawfully sells, exchanges, or gives to another a substance which contains marijuana and weighs over four ounces, OR (b) unlawfully sells, exchanges, or gives any amount of marijuana to a person less than 18 years old. This is a class D felony.
- NY Penal Law § 221.55 – Criminal Sale of Marijuana in the First Degree:
This occurs when a person unlawfully sells, exchanges, or gives to another a substance which contains marijuana and weighs over 16 ounces (one pound). This is a class C felony.
The Elements of Criminal Sale of Marijuana
The “elements” of an offense are the things that the prosecutor must prove for you to be found guilty of this offense. For example, for a defendant to be convicted of fourth-degree sale of marijuana, all of the following must be proven at trial:
- You must possess, or otherwise be able to obtain and sell marijuana, AND;
- You must knowingly and unlawfully sell, exchange or give a substance containing marijuana to another, OR;
- You must knowingly and unlawfully offer or agree to sell, exchange, or give a substance containing marijuana to another.
For the first, second, third, and fifth-degree offenses have additional elements, such as weight of the marijuana. Each element is discussed briefly below. It should be noted that, unlike other crimes, controlled substances offenses can be proven through circumstantial evidence. This means that you could be convicted even without direct evidence of a sale of marijuana.
Element #1: Possess or otherwise be able to obtain and sell marijuana
This element is crucial because, if you do not possess or have access to marijuana, you obviously cannot be found guilty of selling any. This is less important if the prosecution can prove that you actually sold marijuana.
However, as will be discussed below, you can be charged with criminal sale of marijuana for merely offering to sell, even if you don’t carry out the actual sale. Indeed, the statutory definition of “sell” which applies to controlled substances offenses is broad and covers offers and agreements to sell
In People v. Davis, the court held that to convict a defendant on this offer-to-sell theory. The prosecution only needed to prove, through circumstantial evidence, that the defendant (1) offered to sell marijuana, (2) specifically intended to sell marijuana, and (3) could do so.
Some examples include:
- Kate possesses the amount of marijuana that she offered to give to Scott.
- Kate keeps a large stash of marijuana, more than the amount she offered to sell to Scott.
- Kate can easily get marijuana from her friends.
Kate frequently sells marijuana and knows where to obtain it
Element #2: Knowingly and unlawfully sell, exchange, or give marijuana to another
This element is satisfied by the physical transfer of a marijuana-containing substance to another. The marijuana need not be pure marijuana, but any substance that is containing marijuana (this will become very important later on when discussing higher-degree offenses based on weight).
- Kate hands Scott an ounce of marijuana and receives $100.
- Kate gives Scott a brownie containing a small amount of marijuana.
- Kate sells to Scott a vape cartridge containing cannabis oil or marijuana extract.
Element #3: Knowingly and unlawfully offer or agree to sell, exchange, or give marijuana to another
This element is satisfied by offering or agreeing, either verbally or through writing, to sell, exchange, or give any marijuana-containing substance to someone else.
- Kate asks Scott if he would like to buy some marijuana from her. Scott agrees. Kate offers to sell to Scott an ounce of marijuana for $100.
- Kate and Scott agree that Kate will sell to Scott an ounce of marijuana for $100.
The other variations of this offense depend on the amount or weight of the marijuana-containing substance sold.
Element #4: Weight
The marijuana-containing substance sold, exchanged, or given must exceed in weight:
- For first-degree, 16 ounces (or 1 pound)
- For second-degree, 4 ounces (but, if sold to someone less than 18 years old, weight is no longer an element)
- For third-degree, 25 grams
Element #5: Elements for fifth-degree criminal sale of marijuana
For the fifth-degree offense, there are two additional elements: (1) the substance must be less than two grams or constitute a single cigarette, and (2) the substance must not be given for payment or money, or any bargained-for exchange.
- Kate sells to Scott a cigarette containing marijuana for $10. This would NOT constitute a fifth-degree criminal sale of marijuana because the marijuana was sold for payment. However, this would constitute the fourth-degree offense, which does not have any weight requirement.
Related Offenses That Are Often Brought Together With Criminal Sale of Marijuana
If you are charged with criminal sale of marijuana, the chances are that you will also be charged with other crimes, such as:
- Attempt or conspiracy to commit criminal sale of marijuana
- NY Penal Law §§ 221.10-221.30 – Criminal Possession of Marijuana:
This occurs when a person knowingly and unlawfully possesses marijuana. This offense ranges from a class B misdemeanor to a class C felony.
- NY Penal Law §§ 220.31-220.43 – Criminal Sale of a Controlled Substance:
This occurs when a person unlawfully sells, exchanges, or gives a controlled substance on (excluding marijuana but including “concentrated cannabis”). This offense ranges from a class D felony to a class A-I felony.
Case Law Further Defining the Meaning of Criminal Sale of Marijuana
Criminal sale of marijuana can be proven through circumstantial evidence. This means that the prosecution does not need to prove that certain elements of the offense conclusively.
For example, in People v. Luscomb, the Appellate Division upheld the conviction, holding that no expert testimony was required to prove that the substance in question was marijuana and that no proof of the exact weight of the substance sold was required.
- Criminal sale of marijuana in the fifth degree is a class B misdemeanor, with a maximum sentence of three months and a maximum fine of $500.
- Criminal sale of marijuana in the fourth degree is a class A misdemeanor, with a maximum sentence of a year and a maximum fine of $1,000.
- Criminal sale of marijuana in the third degree is a class E felony, with a maximum sentence of 4 years, and a maximum fine of $15,000 or double the amount of the defendant’s gain from the commission of the crime, whichever is higher.
- Criminal sale of marijuana in the second degree is a class D felony, with a maximum sentence of 7 years and a maximum fine of $5,000 or double the amount of the defendant’s gain from the commission of the crime, whichever is higher.
Criminal sale of marijuana in the first degree is a class C felony, with a maximum sentence of 15 years and a maximum fine of $15,000 or double the amount of the defendant’s gain from the commission of the crime, whichever is higher
Your sentence can significantly increase if you have a prior felony conviction. For example, if you are found guilty of second-degree sale of marijuana, a class D felony, someone with no prior felony offense could receive no jail time. However, a second felony offender will receive at least a two-year sentence.
Under New York’s three-strikes law, someone with two prior felony convictions will face at least a 15-year sentence for the same offense.
A felony conviction also has various other collateral consequences. They include:
● Reputational harm and loss of job
● Time and money spent defending yourself in court
● Loss of gun ownership rights
● Potential deportation if you are an immigrant
● Inability to obtain job-related licenses and certifications.
● An increased sentence for future convictions Navigating the relevant sentencing rules is extremely consequential. You should retain and consult with an attorney as soon as possible to understand your sentencing risk should you be found guilty of an offense
Legal Defenses to Criminal Sale of Marijuana
There are several powerful defenses that a skilled attorney can use to minimize your risk and win an acquittal.
Defense #1: Lack of criminal knowledge
One of the elements that prosecution must prove is that you must be aware of selling marijuana. In addition, if you have not actually sold or transferred the marijuana, the prosecution must prove that you offered or agreed to sell marijuana.
However, if you did not know that you were selling or offering to sell a substance containing marijuana, then you cannot be convicted of criminal sale of marijuana. A skilled attorney can make the case that, based on the evidence, you did not know the criminal nature of your actions.
Defense #2: Insufficient Evidence
Controlled substances offenses, including the criminal sale of marijuana, are often proven through circumstantial evidence. This makes it easier for the prosecution to introduce indirect evidence of the crime. Thus, it is all the more crucial that a skilled attorney argues on your behalf, that the evidence presented at trial is insufficient to create the inference that you committed the crime.
Defense #3: Insufficient Corroboration for Accomplice Testimony
For similar reasons, oftentimes the sole testimony against the defendant will be of an alleged accomplice. However, under N.Y. C.P.L. § 60.22, you cannot be convicted of any offense based on accomplice testimony without sufficient corroboration.
“The corroborative glue does not require independent proof of the elements of the crime to sustain a conviction; it just has to bind the accomplice evidence to the defendant.” People v. Breland, 83 N.Y.2d 286, 293 (1994).
Thus, a skilled defense attorney can argue that an accomplice’s testimony is not sufficiently corroborated by other evidence presented at trial to be admissible.
Defense #4: Entrapment
If you were induced by a police officer, agent, or someone working for the police to sell marijuana, you might be entitled to the entrapment defense. Your attorney would have the burden of proof that you would not have committed the offense if you had not been induced.
Call Us For Help.
As this article suggests, criminal sale of marijuana is a complex offense with serious consequences. For questions about this offense, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us.
We have local criminal law offices in your area.