Possession of 25 grams or less of marihuana in New York is generally not a criminal offense. [PL 221.05]. Therefore, simple possession of an unlit “joint” or a “nickel or dime” bag in New York is generally only charged as the violation – Unlawful Possession of Marihuana. One can be charged criminally with Criminal Possession of Marihuana in the Fifth Degree – a Class B Misdemeanor if the marihuana is in a public place and burning or open to public view. [PL 221.10].
Furthermore, prior convictions for UPM do no elevate a new UPM charge to a criminal offense. There are some offenses found in the Penal Law or the Vehicle and Traffic Law which are elevated to a more serious charge if one has a prior conviction for the same offense. For example, if one is arrested for DWI they are generally charged with DWI as an unclassified misdemeanor. However, if they have a prior DWI conviction within the ten years prior to their arrest on the current DWI, the current DWI can be elevated to a Class E felony.
That’s not the case with Unlawful Possession of Marihuana [PL 221.05]. Nothing elevates UPM to a criminal offense. Even if you have 50 prior convictions for UPM, if you are caught with 25 grams or less of marijuana, you still are only facing the non-criminal violation of Unlawful Possession of Marihuana. Prior controlled substance convictions may result in a higher fine but will not operate to elevate the UPM to a criminal offense. I will discuss when a prior controlled substance conviction may result in a higher fine on a current UPM in a future blog.