Changes to New York’s Marijuana Possession Laws

NEWS FLASH: New York’s marijuana possession laws have changed.

You may have heard that New York has taken steps to “de-criminalize” marijuana possession, but you should not take this to mean that “weed has been completely legalized.” What New York HAS done is increased the amount of marijuana for which a “violation” offense may be charged in lieu of a crime. Of critical importance is the fact that a person convicted for a violation does not incur a permanent criminal record. Despite the changes to the law, people can still be arrested, charged, and fined for possessing a small amount of marijuana and these incidents may still lead to devastating immigration consequences.

Under New York’s now-replaced marijuana laws, it was a violation to possess any amount of marijuana under twenty-five grams, but there was a huge caveat: it was a crime to possess any amount of marijuana in a public place that was also “burning” or “open to public view.” In other words, just holding a blunt was enough to put you on the hook for a misdemeanor. Conversely, it was only a violation (and not a crime) to carry a bag of marijuana in your pocket, in the glove compartment of your car or in the privacy of your home. Under the old laws, anyone who possessed a quantity of marijuana over twenty-five grams (even if it was hidden away somewhere) was subject to criminal charges.

Under the new law – violation-level marijuana possession has been expanded to include the possession of up to two ounces of one or more preparations, compounds, mixtures or substances containing marijuana. Moreover, this expanded violation charge is now only punishable by a fine and not also by the fifteen days jail that was authorized under previous statute. The new law has also created automatic retroactive and prospective expungement for any PL 221.05 and PL 221.10 offenses (the old marijuana violation and misdemeanor charges, respectively).

We cannot emphasize this enough: New York violations are considered convictions for immigration purposes. In addition, because marihuana is considered a controlled substance under immigration law, the immigration consequences of a marihuana violation conviction can be severe. The consequences for each individual depend on their immigration status, immigration history, and prior criminal legal system contacts. In general, a marihuana violation is a “controlled substance offense” for immigration purposes, subjecting non-U.S. citizens to negative immigration consequences that may include deportability, ineligibility for immigration status, inability to enter the U.S. from a trip abroad, and mandatory immigration detention.

SUMMARY OF NEW MARIJUANA VIOLATION LAWS:

• “Unlawful Possession of Marihuana in the Second Degree.” This new violation charge applies for possession of up to one ounce and carries a fine of up to $50;
• “Unlawful Possession of Marihuana in the First Degree.” This new violation charge applies in cases involving possession over 1 ounce and carries a punishment a fine of up to $250.

It is also worth noting that New York’s Public Health Law was also amended to outlaw marijuana smoking, which is now prohibited everywhere that tobacco smoking is prohibited (in other words, restaurants, bars, public transportation facilities, playgrounds, schools, offices, etc).

Finally, along with the change in marijuana laws comes a big change in the manner in which the police are directed to handle such offenses. From now on, the NYPD has been instructed to issue “appearance tickets” in connection with the charges described above, unless the person they have stopped has no valid identification, lives out of state or has a warrant. Those who receive such appearance tickets will be commanded to appear in summons Courts.

We urge anyone charged with a marijuana misdemeanor or a violation to contact us immediately.