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Home grown marijuana in New York: Will it be legal?

As New York state debates legalizing adult recreational marijuana use, the question of whether the state will allow consumers to grow their own is still unsettled. The Plain Dealer

To David R. Clifford of Auburn, it just makes sense: If marijuana becomes legal for adult recreational use in New York, he says, consumers should be able to grow their own.

“I can grow my own tomatoes or herbs,” he said. “If I’m a beer drinker, I can grow my own hops and make some home brew. So why not let me grow my own cannabis?”

It may not happen. While New York lawmakers are considering legalizing marijuana for recreational use, the proposal offered by Gov. Andrew Cuomo earlier this year does not allow growing at home for non-medical use. Recreational users would have to buy their weed from a state-licensed retail outlet.

Cuomo’s plan does call for a limited amount of home-grown cannabis plants, but only for those who have a diagnosis allowing them to use marijuana for medical purposes. The state’s three-year-old medical marijuana program has until now not allowed home-grown cannabis.

Versions of the legalization plans introduced in both the Assembly and Senate do appear to authorize up to six plants to be cultivated for private use. Those bills make no reference to limiting it for medical use.

Home-grown weed is just one of many details still to be worked out on New York’s path to legal recreational marijuana. Cuomo is hoping to have a law approved by April 1, in time for the upcoming state budget. Some lawmakers, including Assembly Speaker Carl Heastie, think that timetable may be too fast.

At the heart of the recreational marijuana proposals are provisions allowing those over 21 to possess limited amounts of weed for personal use. The plans also deal with setting up retail outlets, authorizing taxes and addressing social issues, such as sealing the criminal records of those convicted of past marijuana offense.

The issue of allowing home-grown cannabis is close to the hearts of many of those who have championed legal marijuana over the years. Most of the states that have allowed recreational allow some amount of home cultivation, while a few, like Washington state and New Jersey, do not.

Clifford, a salesman for a Buffalo-based company that specializes in CBD oil derived from cannabis, advocated for home growing last October during a marijuana legalization “listening session” held by Cuomo’s office in DeWitt.

“I want to grown my own,” Clifford told the hearing, one of several held across the state as Cuomo was preparing his legalization plan. “I can do it better that anybody.”

The benefits to growing your own, Clifford said in a recent interview, include lower cost and more control.

He says he can grow his own for 10 percent of the cost to buy it. “And I know where it’s been grown, what’s in the soil, what’s going into it,” he said. “If it’s from my garden I know it’s good.”

Clifford also thinks small-scale is better.

“Keep the corporations out of it,” he said. “Look how the breweries have bloomed, the fact they’re small and local and people know where the beer is from. That works best.”

The major companies that have a stake in the state’s current medical marijuana program, not surprisingly, are opposed to allowing home-grown weed. The New York Medical Cannabis Industry Association, whose members are the companies licensed to produce and sell medical marijuana, sent a memo to Cuomo urging him to reject home-grown.

The memo suggested home-grown would “make it impossible for the state to eliminate the black market,” “make it impossible for law enforcement to distinguish between legal and illegal products,” “undermine the state’s . goal of ensuring that cannabis sold in New York State is grown without noxious pesticides or other contaminants,” and “undermine the state’s public health interest in ensuring that cannabis sold in New York State is tested, packaged, and and labeled correctly.” The group also warned that home growing would “cost the state tax revenue.”

NYMCIA member companies include Columbia Care, Etain, The Botanist and Acreage NY, Vireo Health and MedMen (which has acquired a former member, PharmaCann). These companies presumably would be among those vying to produce and supply cannabis for recreational use in New York.

The web site Politico, followed by a site called Marijuana Moment, highlighted the opposition, noting that it could be a matter of the cannabis providers protecting their turf by trying to influence the governor.

“From our perspective, it’s really hard to see any real reason — other than individual and corporate greed — to be against home cultivation at this point,” Erik Altieri, executive director of NORML, told Marijuana Moment.

Tyrone Stevens, a spokesman for Cuomo, said the governor based his proposal on the series of hearings held across the state last year.

“Governor Cuomo launched 17 listening sessions in communities from Binghamton to Brooklyn to hear directly from everyday New Yorkers about how to create a fair and equitable adult-use cannabis program,” Stevens wrote in an email. “Throughout this process, we’ve engaged a wide range of stakeholders, including medical professionals, law enforcement, treatment providers, and more to account for the various needs of this state and to ensure our proposal is comprehensive. That’s what governing is all about, and we’re continuing this important work with the legislature to get an adult-use cannabis program passed as part of this year’s budget.”

Going forward, the issue of home-grown will be one to follow as the marijuana leglaization debate continues.

“For the folks who have been long-time proponents of legalization, home-grown is a real central issue,” said Josh Weinstein, co-founder of CannaGather, which bills itself as New York’s “largest cannabis industry community,”

“It makes sense for there to be an abundance of caution around home-grow,” Weinstein said, “but the benefit still seem to outweigh the cons. Whether it makes it into the final legislation is unclear.”

Home grown marijuana in New York: Will it be legal? As New York state debates legalizing adult recreational marijuana use, the question of whether the state will allow consumers to grow their own

New York Laws and Penalties

Possession

Trafficking

Cultivation

Hash & Concentrates

Paraphernalia

Civil Asset Forfeiture

Miscellaneous

Penalty Details

Marijuana and its synthetic “equivalents” are considered Schedule I hallucinogenic substances under New York Public Health Law. Synthetic equivalents include resinous extracts and derivatives with similar chemical properties.

  • New York Pub. Health §3306(d)(13) Web Search
  • New York Pub. Health §3306(d)(21) Web Search
Possession for Personal Use

Democratic Gov. Andrew Cuomo signed legislation into law amending marijuana possession penalties and establishing procedures for the automatic expungement of prior, low-level cannabis convictions. The law took effect August 28, 2019.

The marijuana possession statute applies to private and public possession of marijuana.

Possession of up to 28 grams of marijuana is punishable by a fine of $50.

Possession of marijuana in excess of 28 grams – 2 ounces is a violation punishable by a maximum fine of $200.

Possession of marijuana in excess of 2 ounces – 8 ounces is a class A misdemeanor and is punishable by no more than 1 year of imprisonment and a fine not to exceed $1,000. Possession of marijuana in excess of 8 ounces – 16 ounces is a class E felony and is punishable by no more than 4 years of imprisonment and a fine not to exceed $5,000. Possession of marijuana in excess of 16 ounces – 10 pounds is a class D felony and is punishable by no more than 7 years of imprisonment and a fine not to exceed $5,000. Possession of marijuana in excess of 10 pounds is a class C felony and is punishable by no more than 15 years of imprisonment and a fine not to exceed $15,000.

  • New York Pen. Code §221 Web Search
  • New York Pen. Code §70 Web Search
  • New York Pen. Code §80 Web Search
Public Consumption

Public consumption of marijuana through smoking or vaping will be handled as a violation of New York’s tobacco control laws.

  • New York Pub Health Sec.1399-n Web Search

Exchange without payment of less than 2 grams of marijuana and/or one marijuana cigarette is a class B misdemeanor and is punishable by no more than 3 months imprisonment.

Sale of marijuana in any amount to a person under 18 years of age is a class D felony and is punishable by up to 7 years of imprisonment and a fine not to exceed $5,000.

Sale of marijuana in an amount 25 grams or less is a class A misdemeanor and is punishable by no more than 1 year of imprisonment and a fine not to exceed $1,000. Sale of marijuana in an amount greater than 25 grams – 4 ounces is a class E felony and is punishable by up to 4 years of imprisonment and a fine not to exceed $5,000. Sale of marijuana in an amount greater than 4 ounces – 16 ounces is a class D felony and is punishable by up to 7 years of imprisonment and a fine not to exceed $5,000. Sale of marijuana in excess of 16 ounces is a class C felony and is punishable by up to 15 years of imprisonment and a fine not to exceed $15,000.

Using a child to assist in the sale of marijuana is a class E felony and is punishable by no more than 4 years of imprisonment and a fine not to exceed $5,000. This offense includes hiding marijuana on a child or otherwise directing a child to assist in a marijuana sale.

  • New York Pen. Code §70 Web Search
  • New York Pen. Code §80 Web Search
  • New York Pen. Code §220.28 Web Search
  • New York Pen. Code §221 Web Search
Trafficking

A person is considered a major trafficker of marijuana if they do one of the following: Act as the director of an organization, which sells $75000 worth of marijuana over the course of a year or less; collect $75000 or more from sales of marijuana over the course of 6 months or less; possess with intent to sell $75000 or more of marijuana over the course of 6 months or less. If one or more of the above are satisfied the person may be charged as a major trafficker, this is a class A-I felony and is punishable by 15-25 years of imprisonment and a fine not to exceed $100,000.

  • New York Pen. Code §220.77 Web Search
  • New York Pen. Code §70.00(i) Web Search
Cultivation

Growing cannabis is a class A misdemeanor and is punishable by up to 1 year of imprisonment and/or a fine of up to $1000.

*While technically cultivation of any amount of marijuana is a misdemeanor, a person who cultivates marijuana is also “possessing” marijuana under current case law. Parmeter v. Feinberg affirms the state’s ability to charge a person with the crime of “cultivation” and “possession” any time a person is caught growing marijuana. This means the more marijuana that a person cultivates the more severe the degree of possession that the state can charge.”

Hash & Concentrates

The term ‘Marihuana’ as used in the New York Criminal code is defined as including both plant-form Marihuana and Concentrated Cannabis. Marihuana is listed as a Schedule 1 drug on the New York Controlled Substances Schedule. Concentrated Cannabis is defined as the separated resin of the Cannabis plant, whether purified or raw, or any mixture or preparation containing at least 2.5% THC. Unlike most other states, New York uses the term Tetrahydrocannabinols exclusively to refer to synthetic cannabinoids, not Concentrates. New York does not apply its Marihuana decriminalization law to Concentrated Cannabis. There is no explicit justification for this in the statute, but specific penalties for offenses involving Concentrated Cannabis are separated from those involving plant-form Marihuana and the distinction is noted in caselaw.

Possession of any amount of Concentrated Cannabis up to one-fourth of an ounce is a class A Misdemeanor, punishable by up to 1 year imprisonment and a fine not to exceed $1000.

Possession of between one-fourth of an ounce and one ounce of Concentrated Cannabis is a class D Felony, punishable by up to 7 years imprisonment and a fine of no more than $5000.

Possession of one ounce or more of Concentrated Cannabis is a class C Felony, punishable by up to 15 years imprisonment and a fine of no more than $15,000.

The presence of any controlled substance in an automobile creates a presumption of knowing possession for all occupants of the vehicle. This principle does not apply if the controlled substance is on the person of one of the passengers and the substance is hidden from the view of other passengers.

The presence of Marihuana (including Concentrated Cannabis) in open view in a room, other than a public place, under circumstances that evince an intent to manufacture, package, or otherwise prepare the Marihuana for sale gives rise to a presumption of knowing possession for all those in close proximity to the Marihuana at the time it is found.

  • New York Pen. Code §220.25 Web Search

Sale of any amount of Concentrated Cannabis is a class C Felony subject to no more than 15 years imprisonment and a fine not to exceed $15,000.

  • New York Pen. Code §220.34 Web Search

Sale of any amount of Concentrated Cannabis on a school bus, on the grounds of a child day care or educational facility, or in a publically accessible area within 1000 feet of the real property line of such a facility is a class B Felony subject to no more than 25 years imprisonment and a fine not to exceed $30,000.

  • New York Pen. Code §220.44 Web Search

Sale of any amount of Concentrated Cannabis by a person 21 years old or more to a person 17 years old or younger is a class B Felony subject to no more than 25 years imprisonment and a fine not to exceed $30,000.

  • New York Pen. Code §220.48 Web Search
Paraphernalia

Possession or sale of scales or balances for the purpose of weighing or measuring marijuana is a class A misdemeanor and is punishable by up to 1 year of imprisonment. Any subsequent conviction of possession or sale of paraphernalia is a class D felony and is punishable by up to 7 years imprisonment and a fine of up to $5000.

  • New York Pen. Code §220.50 Web Search
  • New York Pen. Code §220.55 Web Search
  • New York Pen. Code §70 Web Search
  • New York Pen. Code §80 Web Search
Forfeiture

If convicted of a felony offense the following may be forfeited, unless the forfeiture would be disproportionate from what the defendant gained from the offense: the proceeds from the offense, instruments used in the offense (including a car).

  • New York Pen. Code §480.05 Web Search
Miscellaneous

Mandatory suspension for a period of six months where the holder is convicted of, or receives a youthful offender or other juvenile adjudication in connection with any crime in violation of the Federal Controlled Substances Act.

  • New York Pen. Code § 510(2)(b)(v) Web Search
More Information
Decriminalization

The state has decriminalized marijuana to some degree. Typically, decriminalization means no prison time or criminal record for first-time possession of a small amount for personal consumption. The conduct is treated like a minor traffic violation.

Drugged Driving

Every state criminalizes driving under the influence of a controlled substance. Some jurisdictions also impose additional per se laws. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. Read further information about cannabinoids and their impact on psychomotor performance. Additional information regarding cannabinoids and proposed per se limits is available online.

Expungement

This state has enacted legislation explicitly providing the opportunity for those with marijuana convictions for activities that have since been decriminalized/legalized to have their record expunged.

Mandatory Minimum Sentence

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.

Medical Marijuana

This state has medical marijuana laws enacted. Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications. These include pain relief, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant and emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors, and are neuroprotective.

New York Laws and Penalties Possession Trafficking Cultivation Hash & Concentrates Paraphernalia Civil Asset Forfeiture Miscellaneous Penalty Details Marijuana and its