New York City Police Commissioner Ray Kelly advised NYPD officers to not arrest people for small amounts of drugs found in their pockets in a September memo, which said, “A crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marihuana.” This order was made during a time of negative publicity regarding wrongful marijuana arrests.
Possession of small amounts of marijuana (less than 25 grams) is a violation rather than a criminal offense in New York, requiring a court appearance under New York State Penal Law § 221.05. This can be punished with up to $100 in fines on the first violation and up to $200 in fines upon the second violation. A third violation can lead to a punishment of up to 15 days in a New York jail.
However, the violation becomes a criminal matter if the marijuana is possessed “in plain view” or “in public.” This is the critical distinction that lands many unsuspecting New Yorkers in court, facing misdemeanor charges. A police officer may “stop and frisk” a person, perhaps asking the individual to empty his or her pockets, empty a backpack or purse. After the marijuana is revealed it can be considered “in plain view.” This loophole can have serious consequences, including a potential class B misdemeanor conviction, punishable by up to 90 days in jail and / or a fine up to $500 under New York State Penal Law § 221.10.
The AP has reported that there are 50,000 of these pot arrests made each year in New York City, which is more than any other criminal charge! The Commissioner’s announcement has decreased the amount of misdemeanor marijuana arrests by 1,190 over the past nine weeks compared to the same period in 2010. Despite this drop 13% drop, men, women, and youth, may still arrested for public possession of marijuana in Queens, The Bronx, Brooklyn or any of the other New York boroughs.
It’s critical to remember, however, that an arrest does not necessarily mean that conviction will follow. Depending on the circumstances surrounding the arrest, there are many potential defenses that the attorney of the accused may use. This includes showing that the public possession occurred only to comply with the officer’s demands or showing that the defendant did not know the pot was in his or her possession. An experienced Queens marijuana defense lawyer can develop a strategy to help defend the defendant, who can still be charged with possession of marijuana in public, despite the NYPD Police Commissioner’s memo.