Unlawful Possession of Marijuana in New York

Despite its harsh Rockefeller Drug Laws, New York State is relatively lenient when it comes to marijuana possession. If your attorney knows what he’s doing, a first-time marijuana offense should be resolved with an ACOD (adjournment in contemplation of dismissal) pursuant to Section 170.56 of the Criminal Procedure Law. This applies to the Unlawful Possession of Marijuana violation (221.05 of the Penal Law); Criminal Possession of Marijuana in the 5th degree (221.10) and Criminal Possession of Marijuana – 4th (221.15). The latter two are both misdemeanors — crimes. A violation is not a crime.

In many courts the judges and prosecutors are aware of this rule and will generally go along with an attorney who makes the motion properly. However, there are courts where prosecutors and judges may not accept this easily. In some courts they will try to get the defendant to do community service as a condition of the ACOD. This is improper. While community service can be a part of a regular ACOD under CPL 170.55, a marijuana ACOD generally comes under CPL 170.56. The former statute specifically mentions community service. The marijuana ACOD statute does not mention community service as an option.

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In other courts, they may not like the idea of a marijuana user “getting away” with no consequences. This perception is unfair, as the defendant will have endured an arrest and paid an attorney a substantial amount of money. There are consequences. But more important, the legislature decided that an ACOD is how a first-time offense should be handled.

An attorney should be able to explain these issues to the local judge handling the case. And if that judge still doesn’t follow the law, the attorney should be able to appeal to a more sensible Court. There will usually be an additional fee for an appeal. To make sure it’s done right, the attorney should review CPL 170.56, make sure to follow all of the requirements of the law, and make a record showing that all of the necessary elements were proven so that any appeal will succeed.

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It’s important for clients to get the ACOD if possible, especially for young clients. Under federal law, a person convicted of any drug offense is ineligible for financial aid. So that $200 marijuana violation can cost tens of thousands of dollars in lost financial aid. Also, the marijuana ACOD is more than a dismissal. New York law treats it as a nullity – something that never happened. If you’re asked if you’ve ever been arrested, this nullity means that you were not arrested. The records are also supposed to be sealed. If the client requests it, the attorney should follow up with the Court to make sure the records have been sealed.


by Warren Redlich