• Getting Caught With Marijuana Dec. 2014
  • December 10, 2014
  • Law Firm: Henry Lung - Mineola Office
  • Today I am writing about a topic that is near and dear to many young people (and their parents, grandparents, and teachers): what happens when a person is arrested for possessing MARIJUANA a/k/a ‘ganga’ a/k/a ‘pot’ a/k/a ‘weed’ a/k/a ‘it’s gotta be 4:20 PM somewhere.’ I want to discuss what happens the 1st time (and the 2nd time) a person is arrested with a relatively small amount of marijuana, meaning any amount that is up to and including eight (8) ounces of pot, you will be charged with an ‘E’ felony ( or a higher felony).

    This is a picture of 1 page from the ‘criminal calendar’ of a typical courtroom of the District Court of Nassau County. Once every case on the courtroom’s calendar has been called for that day, these calendars are thrown out. Every criminal courtroom will have its own calendar posted outside on the wall. If you have an open criminal case but do not know what courtroom it is in, check the ‘Master Calendar’ or check on www.eCourts.com (or eLaw.com). The ‘Master Calendar’ is normally on the 1st floor of each criminal Court.

    You can see that of the eight (8) names, two (2) people charged with marihuana with NY Penal Law Sec. 221.10-01, which is ‘criminal possession of marihuana in the 5th degree.’ (All statues in New York that deal with marihuana spell the word with an ‘h’ and not a ‘j’). The charges of criminal possession of pot in the 5th degree (a ‘B’ misdemeanor) and in the 4th degree (an ‘A’ misdemeanor) are the most common charges for marijuana that I’ve seen.

    I was in a criminal courtroom when I overhead a young woman receive a 6 month ACOD ( which stands for an ‘adjournment in contemplation of dismissal’ and is called an ‘ACD’ in the courts of New York City) for drinking alcohol in public and a one (1) year ACOD for smoking marijuana. She has been charged with ‘criminal possession of marihuana in the 5th degree,’ which is the lowest charge that a person can receive for possessing marijuana. Basically, if you are smoking marijuana in public, you are going to be charged with possession in the 5th degree.

    The judge said that this young woman was entitled to the ‘ACOD’ on the marijuana possession charge ‘as a matter of law,’ which means that the judge had no discretion to block it. If you are caught with possession of marijuana for the 1st time in this small amount, the NY Criminal Procedure Law requires the Court to offer you an ‘ACOD.’ You have to swear to the Court (in an Affidavit or ‘on the record’) that you have never granted an ‘ACOD’ for possession of marijuana before in your life, either in New York State or in any other state.

    ‘Criminal possession of marihuana in the fifth degree’ is a B misdemeanor, meaning that the statute allows the Court to sentence you for up to 90 days in jail. The charge of ‘criminal possession of marihuana in the fourth degree,’ which prohibits the possession of marijuana ‘of an aggregate weight of More than two (2) ounces’ is a class A misdemeanor, meaning that the statute authorizes the Court to sentence you to up to 1 year in jail.

    But it is highly unlikely that a person who is charged with possession of pot in the 5th or 4th degree will serve any jail time at all. If you have a clean criminal record, the chances of serving jail time are like the chances of the NY Jets winning the Super Bowl in our lifetime. One of the most common questions in criminal defense practice is ‘am I going to jail for this case?’ For possessing such a small amount of weed, the answer is ‘No, you are not going to jail,’ unless you do something ridiculous such as missing your court date or deciding to throw something at the judge on the day of court.

    An ‘adjournment in contemplation of dismissal’ is Not an automatic dismissal but rather a dismissal that takes place over time, which in general is 6 months. For a first-time possession of marijuana charge in the 5th or 4th degree, the 'ACOD' period is 12 months, which is the same period of time that applies whenever an 'ACOD' is offered in a domestic violence case. During the 6 or 12 month period (whichever applies to your case) if you arrested for any New Unrelated criminal charge (shoplifting, DWI, assault, criminal mischief, etc.), the District Attorney’s office that offered the 'ACOD' has the option of reopening your case. But if your case is reopened, you do Not lose any of your rights. Your lawyer can still file Motions to compel the Court to set down a schedule of pre-trial hearings and you do Not lose your right to take your case to trial, to testify on your own behalf and to present evidence that favors you.

    An 'ACOD' is Not the same as an immediate dismissal, which happens only after a person is acquitted after trial OR after the District Attorney’s office decides to drop the entire criminal case, which is rare but it does happen. Once a person accepts an 'ACOD,' that person will Not prevail if he/she decides to file a lawsuit against the police or against the District Attorney’s office. There is enough case law that prevents a person who has received an 'ACOD' from winning money in a civil lawsuit against the police and/or the DA's office.

    The twelve (12) month period for an 'ACOD' that is offered in marijuana cases should not be confused with 'ACOD's that are offered in other types of criminal cases. For example, I recently represented a young man who was accused of the public consumption of alcohol, which is a ‘violation’ and Not a misdemeanor. H was granted a one (1) day ACOD, meaning that the charge was dismissed entirely after 24 hours. He was issued this summons in Queens (a very lenient jurisdiction), while the woman whose case I observed was granted the standard six (6) month 'ACOD.'

    If you are arrested for possession of marijuana in the 5th or 4th degree for a SECOND time, yes it is possible to obtain an 'ACOD' but it will no longer be a matter of right for you to receive it. This is where your defense lawyer really has to go to bat for you. There is a Second statute that governs the granting of 'ACOD's in the NY Criminal Procedure Law but nyou are to receive an 'ACOD' for a second time relating to a marijuana case.

    If you or someone you know has been arrested for possessing marijuana that was up to but not exceeding eight (8) ounces, you should Not be spending a small fortune on a defense lawyer. These types of cases are resolved in 1 to 2 appearances in Court and No criminal conviction will wind up on your record.

    Besides the 'M 221.10-01' charges that you see in the picture, the numbers M 155.25-00 stand for 'petit larceny,' which is petty larceny a/k/a shoplifting. The VTL 509.1-01 charge is the very common 'driving without a license' charge and 'VTL' stands for the NY Vehicle and Traffic Law.

    I tried to choose a page from the criminal calendar that showed a listing of the most common types of misdemeanors that the general public is charged with. These charges are all very common and relatively easy to resolve, so I urge you to Not Spend a Fortune on a defense lawyer for these types of charges!