Marijuana possession, sale, and cultivation are regulated by both state and federal law. The federal government classifies marijuana, along with heroin and cocaine, as a Schedule I drug with a high potential for abuse and little to no medical benefit. (21 C.F.R. § 1308.11(d)(23).) Possessing any amount of marijuana is a federal crime. In New York state, marijuana (spelled “marihuana” in New York statutes) is also a Schedule I substance (N.Y. Pub. Health § 3306(d)(13) (2019).) Nevertheless, as of 2014, New York state allows for limited medical use, as explained below.
New York is one of more than 30 states with a medical marijuana program. In New York, patients can use marijuana to treat specific conditions with an associated complication if a registered health care provider certifies them for the program. For example, a cancer patient might be able to use marijuana to help with chronic pain and nausea.
Certified patients must register with the Department of Health before they can buy medical marijuana from state-licensed dispensaries. The Commissioner of Health must approve any form of medical marijuana. Examples of approved forms include vape cartridges, lozenges, and topicals. Under current laws and regulations, patients can’t smoke medical marijuana or consume edibles.
(N.Y. Pub. Health §§ 3360 to 3369-E (2019).)
It is illegal to use and possess marijuana in New York, but it isn’t necessarily punished by jail time, as are most crimes. As of 2019, possession of up to two ounces is a civil violation, with fines as low as $50. Possessing larger amounts for personal use (and any amount with the intent to sell) is a crime punishable by jail or prison. (See below for more information on the difference between decriminalization and legalization of marijuana.)
New York punishes people who unlawfully possess marijuana based on how much they possess.
(N.Y. Penal Law §§ 70.00, 70.15, 80.00, 80.05, 221 to 221.30 (2019).)
New York defines marijuana as the original plant buds and treats “concentrated cannabis” (basically any form of THC, like hash, that is not the original plant buds) as a controlled substance distinct from marijuana. (N.Y. Pub. Health § 3302 (2019).) People who are caught with even small amounts of concentrated cannabis can be prosecuted for possessing a controlled substance, the same charge they would face if caught with heroin or cocaine. (N.Y. Penal Law § 220 (2019).) For more information, see Possession of a Controlled Substance in New York.
Selling marijuana is addressed separately from possession and personal use. It is a crime to sell any amount of marijuana in New York. Penalties vary depending on the amount of marijuana sold and the age of the buyer.
(N.Y. Penal Law §§ 70.00, 70.15, 80.00, 80.05, 221.35 to 221.55 (2019).)
Cultivating (growing) marijuana is a class A misdemeanor. (N.Y. Pub. Health § 3382 (2019).) People who cultivate marijuana can also be charged with possessing the marijuana they grown. (Matter of Parmeter v. Feinberg, 105 A.D.2d 886 (N.Y. App. Div. 1984).)
For example, say Nelson is busted for growing eight pounds of marijuana. He can be charged with a class A misdemeanor for cultivating marijuana (maximum penalty 364 days' jail time and/or a $1,000 fine) and a class D felony for possessing eight pounds of marijuana (maximum penalty seven years' prison time and/or a $5,000 fine).
Possessing drug paraphernalia, including scales used to weigh marijuana, is a class A misdemeanor. Subsequent violations are class D felonies. (N.Y. Pub. Health §§ 220.5 and 220.55 (2019).)
In 2019, New York established procedures for the expungement of low-level cannabis convictions. People convicted of possessing up to two ounces of marijuana must pay a fine, but the record of their violation is automatically expunged at the time of conviction. Expunged records are confidential—only law enforcement agencies can review expunged records when someone applies to be an officer or for a pistol license. People who are unsatisfied with an expungement can request to have their expunged marijuana conviction destroyed.
Criminal marijuana convictions prior to 2019 that would be violations under the “decriminalization rules” are also automatically expunged. See New York Courts’ self-help guide to Marijuana and Expungement for details.
If you have been charged with a marijuana-related offense, consult an experienced criminal defense lawyer. Marijuana laws change frequently and might be enforced differently depending on where you are cited or arrested. A lawyer can explain relevant marijuana laws to you, review the facts of your case, and advise you about how a case like yours might be handled by local prosecutors and judges.