CRIMINAL POSSESSION OF MARIHUANA IN THE FIFTH DEGREE – NEW YORK PENAL LAW 220.10

In New York, it is illegal to possess marijuana (spelled marihuana in the New York State Penal Law) in a public place while it is either, burning or open to public view. The charge is Criminal Possession of Marihuana in the Fifth Degree – a Class B misdemeanor. [NY Penal Law 220.10(1)]. Under this particular subdivision, the quantity of marihuana is irrelevant. Therefore, smoking a joint in a public place is enough to elevate what would otherwise be the non-criminal offense of Unlawful Possession of Marihuana [NY Penal Law 221.05] to the criminal offense of Criminal Possession of Marihuana in the Fifth Degree.
One can also be guilty of Criminal Possession of Marihuana in the Fifth Degree if they possess more than twenty-five grams of marihuana. [PL 221.10(2)]. One need not possess twenty-five pure grams of marihuana to violate PL 221.10(2). Criminal Possession of Marihuana in the Fifth Degree under subdivision two of PL 221.10 is an “aggregate weight” offense meaning the prosecution need not prove that one possessed twenty-five pure grams of marihuana. The weight of all compounds and substances mixed with the marihuana is included in the weight determination. See People v. Nelson, 144 A.D.2d 714 (3rd Dept. 1988)(noting that a 1979 amendment to New York’s marihuana possession statutes adopted an aggregate weight standard). Theoretically, one could possess one gram of marihuana mixed with twenty-five grams of oregano and be convicted of CPM in the Fifth Degree [PL 221.10(2)].
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