How Have New York’s Marijuana Laws Changed? Read on!

Last updated on June 7, 2021

New York’s Marijuana Laws have recently changed in several major ways, which will affect not only future Marijuana charges but prior convictions as well.

The “Old” Law (Prior to 8/28/19)

Under the New York’s prior Marijuana Laws, there were two low-level marijuana offenses.  First, there was Unlawful Possession of Marijuana under Penal Law Section 221.05.  This was a violation and not a crime (violations do NOT give you a criminal record), punishable by fines starting at $100.00 and by a maximum of 15 days in jail for multiple convictions.  Second, there was the more serious offense Criminal Possession of Marijuana in the Fifth Degree under Penal Law Section 221.10, which was a class B misdemeanor and punishable by up to 90 days in jail.

Unlawful Possession of Marijuana was committed simply by possessing marijuana, such as in your pocket or in the center console of your car.  Criminal Possession of Marijuana in the Fifth Degree was committed either by smoking marijuana or otherwise possessing it in public view in a public place or simply by possessing more than 25 grams of marijuana (a little less than 9/10 of an ounce).

The New Marijuana Law  (“The Times, They Are A-Changing . . .”)

Under the new law, Unlawful Possession of Marijuana is now called Unlawful Possession of Marijuana in the Second Degree (the “new” Penal Law Section 221.05).  It is still a violation, however now it is only punishable by a maximum of a $50.00, regardless of how many prior convictions someone has.

Criminal Possession of Marijuana in the Fifth Degree is now called Unlawful Possession of Marijuana in the First Degree (the “new” Penal Law Section 221.10).  It is no longer a misdemeanor but is now only a violation (i.e., not a crime).  It is only punishable by a maximum of a $200.00 fine, no matter how many times someone is convicted.  This new statute removes the clause relating to possession of burning marijuana or possession in a public place in public view, meaning that now anyone caught smoking or possessing in public can only be charged with Unlawful Possession of Marijuana in the Second Degree.  The amount of marijuana that a person needs to possess to violate this new statute has also been increased, from 25 grams to more than one ounce.

Going forward, people who are convicted of Penal Law Section 221.10 (now Unlawful Possession of Marijuana in the First Degree) are no longer being convicted of a crime, which can have all manner of collateral consequences, including making it much harder to get a job or pursue higher education.   Anyone who finds themselves convicted of either of these new offenses will no longer face possibility of jail time, regardless of prior criminal history.

The New Law is Retroactive – All Prior Convictions Are Affected (& For The First Time: Expungement!)

While this helps those charged with low-level marijuana offenses from here on, what about all those hundreds of thousands of people convicted in the past?  The law relating to the procedure for filing a motion to vacate a prior judgment (plea or conviction) have also changed.  The changes to Marijuana Laws will be effective RETROACTIVELY, meaning that anyone who has been convicted of one of these two offenses in the past can file a motion to vacate that conviction and enjoy the benefit of the new laws.  This is most important for anyone previously convicted of Criminal Possession of Marijuana in the Fifth Degree.  Once their motion is filed and granted, their criminal record (assuming no other convictions) will disappear like magic!

However, other important changes may mean that a motion to vacate a prior conviction might not even be necessary.  For the first time ever, New York State will begin to expunge records of conviction when it comes to the old Marijuana Charges.  Previously, low-level convictions for violations could only be sealed and even then only after three years had gone by.  The New Law adds “expungement”, which involves the destruction of all records of the conviction as well as those of the underlying arrest.   Anyone with an expunged record under the New Law is not even required to admit to having been arrested.   The three year waiting period has also been removed and the expungements are also effective retroactively.  This means that anyone with a conviction for the two old low-level Marijuana offenses will have their record of arrest and conviction destroyed, as well as anyone going forward who is convicted of the two new offenses.

Marijuana Is NOT Legalized in New York

It is important to note, again, that this new law does NOT legalize the possession of Marijuana in New York.  It simply decriminalizes one of the existing low-level Marijuana offenses and reduces the potential penalties involved.  It is still a crime to possess greater than two ounces of marijuana or to sell marijuana in any amount.

If you find yourself charged with ANY Marijuana-related offenses in New York, contact the Law Offices of Jason Bassett, P.C. right away!!!

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