POSITION PAPER: TERRY AND KIM

Position Paper: Terry and Kim

Position Paper: Terry and Kim

Possession of marijuana is a criminal offense under the Controlled Drugs and Substances Act. A person does not have to own the marijuana - he just have to have, or possess, it. There are medical exceptions. If a person is charged with possession of marijuana, one should speak to a lawyer.

It is tempting for people to assume that marijuana cases are treated the same as any other illegal drug cases in New York. The truth is however, is that in two important respects, marijuana cases are treated differently from other illegal drugs in New York City.

First, legally, marijuana related offenses are specifically carved out from and identified as separate from "controlled substances". As a technical matter, in fact, marijuana in New York is NOT a controlled substance. This is important because it means that New York's strict laws about possession and sale of controlled substances do not apply to cases involving marijuana. Marijuana related offenses, in New York, have their own special laws with their own offense levels. This does not necessarily mean that New York doesn't care about marijuana or that it isn't serious to be charged with a marijuana related offense. But it does mean that the legislature has not chosen to classify marijuana related offenses at the same level of seriousness as, for example, cocaine related offenses.

The second important respect in which marijuana cases are different from controlled substance related offenses is that, as a general rule, the district attorneys offices, taking the cue from our legislature's distinction between marijuana and controlled substances are generally more flexible with negotiations in cases involving marijuana than they might be in cases involving cocaine.

Obviously there will be exceptions as the quantity of marijuana involved or the scale of sales involved increases, but generally you are better off trying to negotiate a marijuana case than you are trying to negotiate a cocaine case. This is not to suggest that any of the district attorneys are "soft" on marijuana, but merely to suggest that as between marijuana cases and controlled substance cases, negotiations are likely to go better in the marijuana case.

Marijuana Offenses

The first important distinction that must be made in cases involving marijuana, and indeed ANY illegal drug case, is whether the issue is possession of marijuana or sale of marijuana. As a general rule, possession of marijuana is going to be less serious than sale of marijuana. Of course possession of 500 pounds of marijuana is going to be more serious than the sale of one small bag of marijuana, but you get the idea.

Unlawful Possession of Marijuana (PL Section 221.05)

The least serious marijuana charge there is in New York is called Unlawful Possession of Marijuana and it is found in New York Penal Law Section 221.05.

This section of the law in New York reads very simply, " A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses ...