Is it Legal to Smoke Marijuana in Public in New York City?

Is it Legal to Smoke Marijuana in Public in New York City?

Is it Legal to Smoke Marijuana in Public in New York City?

Our Manhattan drug possession attorneys have watched marijuana laws become more relaxed over the past decade.  Many states have legalized medical marijuana for a variety of health conditions.  Some, including New York, have decriminalized recreational use; and a few, like Colorado and Washington, have legalized recreational use altogether.  While cannabis laws have certainly loosened, there are still a few ways you can get into serious legal trouble if you’re found in public (or even private) possession of marijuana by the NYPD.  Depending on the circumstances, you could even be charged with a felony.

Legalization vs. Decriminalization: Marijuana Violations in New York

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The possession of small amounts of marijuana for personal use has been decriminalized in New York, but not fully legalized.  You can get arrested for selling marijuana, using marijuana, possessing marijuana, or even giving it away as a gift.  Minorities get arrested at disproportionate rates, despite New York’s decriminalization measures.

The unlawful possession of marijuana is classified as a violation, which is a type of non-criminal offense, under NY Penal Law § 221.05.  With some important exceptions, which we’ll get to in just a moment, the law doesn’t impose jail time for possessing a small amount of cannabis, such as a marijuana cigarette (joint).  However, you can still receive a fine of up to $100.

If you had any prior drug-related convictions within the past three years, the fine may be up to $200.  This includes convictions related to:

  • Criminal Injection of a Narcotic Drug
  • Criminal Possession of a Controlled Substance
  • Criminal Possession of Marijuana
  • Criminal Possession of Methamphetamine Manufacturing Materials
  • Criminal Sale of a Controlled Substance
  • Criminal Sale of a Controlled Substance to a Child
  • Criminal Sale of Marijuana
  • Criminally Using Drug Paraphernalia
  • Unlawful Manufacture of Methamphetamine

If you commit a marijuana violation and have two drug convictions from within the past three years, you can be fined up to $250 — and possibly sentenced to up to 15 days in jail.

Is it a Crime to Smoke or Possess Cannabis in a Public Place in NYC?

The possession of small amounts of marijuana is now treated as a violation — at least, under most circumstances.  Notably, it remains a crime to smoke or display marijuana in public.  Under NY Penal Law § 221.10, “A person is guilty of criminal possession of mari[j]uana in the fifth degree when he [or she] knowingly and unlawfully possesses mari[j]uana in a public place… and such mari[j]uana is burning or open to public view.”

A “public place” is defined as any place with public access, including “highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels.”  If a police officer saw you walking through Central Park or going into a subway station with a joint in your hand, you could wind up getting arrested and charged with a Class B misdemeanor.

Unlike violations, misdemeanors are criminal offenses, which means you will receive a criminal record and could be sentenced to jail time, even without any prior drug offenses, if you are convicted.  The penalties for a Class B misdemeanor in New York can include a fine of up to $500 and a jail sentence of up to three months.  Alternately, you could be sentenced to a New York City drug court.

Penalties for Criminal Possession of Marijuana Under Article 221 of the NY Penal Law

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When considering violations and crimes, it’s important to keep the amount of marijuana in mind.  Possession of an amount up to 25 grams is a violation — but any more than 25 grams, and you’re looking at criminal charges.

Possession of more than 25 grams of marijuana can be charged as a Class B misdemeanor under NY Penal Law § 221.10.  As the amount increases, so does the severity of the crime — and the associated penalties.  These penalties are listed below.

  • Criminal Possession of Marijuana in the Fifth Degree
    • Amount — More than 25 grams, up to 2 ounces
    • Classification — Class B Misdemeanor
    • Fines — Up to $500
    • Jail Sentence — Up to 90 days
    • Statute — NY Penal Law § 221.10
  • Criminal Possession of Marijuana in the Fourth Degree
    • Amount — More than 2 ounces, less than 8 ounces
    • Classification — Class A Misdemeanor
    • Fines — Up to $1,000
    • Jail Sentence — Up to 1 year
    • Statute — NY Penal Law § 221.15

Felony fines in New York are normally limited to $5,000 or, where applicable, double the amount of money the defendant made by committing the crime.  However, Class A, B, and C felonies specifically involving marijuana or controlled substances (e.g. heroin, ecstasy, cocaine, LSD/acid, psilocybin mushrooms) are subject to enhanced fines under NY Penal Law § 80.00(1)(c).

  • Criminal Possession of Marijuana in the Third Degree
    • Amount — More than 8 ounces, up to 16 ounces
    • Classification — Class E Felony
    • Fines — Up to $5,000
    • Prison Sentence — Up to 4 years
    • Statute — NY Penal Law § 221.20
  • Criminal Possession of Marijuana in the Second Degree
    • Amount — More than 16 ounces, up to 10 pounds
    • Classification — Class D Felony
    • Fines — Up to $5,000
    • Prison Sentence — Up to 7 years
    • Statute — NY Penal Law § 221.25
  • Criminal Possession of Marijuana in the First Degree
    • Amount — More than 10 pounds
    • Classification — Class C Felony
    • Fines — Up to $15,000
    • Jail Sentence — Up to 15 years
    • Statute — NY Penal Law § 221.30

Questions About Your Marijuana Charges? Contact a Criminal Attorney in NYC

If you or your daughter or son was arrested for marijuana possession in Manhattan, Queens, or Brooklyn, call the New York City criminal lawyers of Sullivan & Galleshaw at (800) 730-0135 for a free legal consultation.  We can help you explore legal defenses against drug charges that may be applicable to your case.  Our New York City defense attorneys also handle drug distribution charges and drug trafficking charges.