Amd §§1.05, 221.05 & 221.10, Pen L; amd §§170.56, 440.10 & 160.50, CP L; add §52-a, Leg L
De-criminalizes the personal possession of marijuana; relates to certain pleas; specifies requirements with respect to bills affecting correctional populations.
STATE OF NEW YORK
________________________________________________________________________
137--B
2015-2016 Regular Sessions
IN SENATE(Prefiled)
January 7, 2015
___________
Introduced by Sens. SQUADRON, ESPAILLAT, HAMILTON, HASSELL-THOMPSON,
HOYLMAN, MONTGOMERY, PARKER, PERKINS, RIVERA, SERRANO -- read twice
and ordered printed, and when printed to be committed to the Committee
on Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Codes in accordance with Senate Rule 6, sec. 8 -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee
AN ACT to amend the penal law, in relation to de-criminalizing the
personal possession of marihuana; to amend the criminal procedure law,
in relation to certain pleas; and to amend the legislative law, in
relation to specifying requirements with respect to bills affecting
the penal law
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "fairness
2 and equity act".
3 § 2. Subdivisions 5 and 6 of section 1.05 of the penal law, subdivi-
4 sion 5 as amended by chapter 612 of the laws of 1982 and subdivision 6
5 as amended by chapter 98 of the laws of 2006, are amended to read as
6 follows:
7 5. To provide for an appropriate public response to particular
8 offenses, including consideration of the consequences of the offense for
9 the victim, including the victim's family, and the community; [and]
10 6. To ensure that laws are enforced equally and fairly and do not
11 result in a disparate impact on people because of their race or ethnici-
12 ty; and
13 7. To insure the public safety by preventing the commission of
14 offenses through the deterrent influence of the sentences authorized,
15 the rehabilitation of those convicted, the promotion of their successful
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00177-05-6
S. 137--B 2
1 and productive reentry and reintegration into society, and their
2 confinement when required in the interests of public protection.
3 § 3. Section 221.05 of the penal law, as added by chapter 360 of the
4 laws of 1977, is amended to read as follows:
5 § 221.05 Unlawful possession of marihuana.
6 A person is guilty of unlawful possession of marihuana when he know-
7 ingly and unlawfully possesses marihuana and such marihuana is burning.
8 Unlawful possession of marihuana is a violation punishable only by a
9 fine of not more than one hundred dollars. [However, where the defendant
10 has previously been convicted of an offense defined in this article or
11 article 220 of this chapter, committed within the three years immediate-
12 ly preceding such violation, it shall be punishable (a) only by a fine
13 of not more than two hundred dollars, if the defendant was previously
14 convicted of one such offense committed during such period, and (b) by a
15 fine of not more than two hundred fifty dollars or a term of imprison-
16 ment not in excess of fifteen days or both, if the defendant was previ-
17 ously convicted of two such offenses committed during such period.]
18 § 4. Section 221.10 of the penal law, as amended by chapter 265 of the
19 laws of 1979, subdivision 2 as amended by chapter 75 of the laws of
20 1995, is amended to read as follows:
21 § 221.10 Criminal possession of marihuana in the fifth degree.
22 A person is guilty of criminal possession of marihuana in the fifth
23 degree when he knowingly and unlawfully possesses[:
24 1. marihuana in a public place, as defined in section 240.00 of this
25 chapter, and such marihuana is burning or open to public view; or
26 2.] one or more preparations, compounds, mixtures or substances
27 containing marihuana and the preparations, compounds, mixtures or
28 substances are of an aggregate weight of more than twenty-five grams.
29 Criminal possession of marihuana in the fifth degree is a class B
30 misdemeanor.
31 § 5. Subdivision 1 of section 170.56 of the criminal procedure law, as
32 amended by chapter 360 of the laws of 1977, is amended to read as
33 follows:
34 1. Upon or after arraignment in a local criminal court upon an infor-
35 mation, a prosecutor's information or a misdemeanor complaint, where the
36 sole remaining count or counts charge a violation or violations of
37 section 221.05, 221.10, 221.15, 221.35 or 221.40 of the penal law and
38 before the entry of a plea of guilty thereto or commencement of a trial
39 thereof, the court, upon motion of a defendant, may order that all
40 proceedings be suspended and the action adjourned in contemplation of
41 dismissal, or upon a finding that adjournment would not be necessary or
42 appropriate and the setting forth in the record of the reasons for such
43 findings, may dismiss in furtherance of justice the accusatory instru-
44 ment; provided, however, that the court may not order such adjournment
45 in contemplation of dismissal or dismiss the accusatory instrument if:
46 (a) the defendant has previously been granted such adjournment in
47 contemplation of dismissal, or (b) the defendant has previously been
48 granted a dismissal under this section, or (c) the defendant has previ-
49 ously been convicted of any offense involving controlled substances, or
50 (d) the defendant has previously been convicted of a crime and the
51 district attorney does not consent or (e) the defendant has previously
52 been adjudicated a youthful offender on the basis of any act or acts
53 involving controlled substances and the district attorney does not
54 consent. Notwithstanding the limitations set forth in this subdivision,
55 the court may order that all proceedings be suspended and the action
56 adjourned in contemplation of dismissal based upon a finding of excep-
S. 137--B 3
1 tional circumstances. For purposes of this subdivision, exceptional
2 circumstances exist when, regardless of the ultimate disposition of the
3 case, the entry of a plea of guilty is likely to result in severe colla-
4 teral consequences, including, but not limited to, those that could
5 leave a noncitizen inadmissible or deportable from the United States.
6 § 6. Paragraphs (h) and (i) of subdivision 1 of section 440.10 of the
7 criminal procedure law, paragraph (h) as amended by chapter 332 of the
8 laws of 2010 and paragraph (i) as amended by chapter 368 of the laws of
9 2015, are amended and a new paragraph (j) is added to read as follows:
10 (h) The judgment was obtained in violation of a right of the defendant
11 under the constitution of this state or of the United States; [or]
12 (i) The judgment is a conviction where the arresting charge was under
13 section 240.37 (loitering for the purpose of engaging in a prostitution
14 offense, provided that the defendant was not alleged to be loitering for
15 the purpose of patronizing a person for prostitution or promoting pros-
16 titution) or 230.00 (prostitution) or 230.03 (prostitution in a school
17 zone) of the penal law, and the defendant's participation in the offense
18 was a result of having been a victim of sex trafficking under section
19 230.34 of the penal law, labor trafficking under section 135.35 of the
20 penal law, aggravated labor trafficking under section 135.37 of the
21 penal law, compelling prostitution under section 230.33 of the penal
22 law, or trafficking in persons under the Trafficking Victims Protection
23 Act (United States Code, title 22, chapter 78); provided that
24 (i) a motion under this paragraph shall be made with due diligence,
25 after the defendant has ceased to be a victim of such trafficking or
26 compelling prostitution crime or has sought services for victims of such
27 trafficking or compelling prostitution crime, subject to reasonable
28 concerns for the safety of the defendant, family members of the defend-
29 ant, or other victims of such trafficking or compelling prostitution
30 crime that may be jeopardized by the bringing of such motion, or for
31 other reasons consistent with the purpose of this paragraph; and
32 (ii) official documentation of the defendant's status as a victim of
33 trafficking, compelling prostitution or trafficking in persons at the
34 time of the offense from a federal, state or local government agency
35 shall create a presumption that the defendant's participation in the
36 offense was a result of having been a victim of sex trafficking, compel-
37 ling prostitution or trafficking in persons, but shall not be required
38 for granting a motion under this paragraph[.]; or
39 (j) The judgment occurred prior to the effective date of this para-
40 graph and is a conviction for an offense as defined by section 221.10 of
41 the penal law (criminal possession of marihuana in the fifth degree), as
42 in effect prior to the effective date of this paragraph, provided that
43 the accusatory instrument that underlies the judgment does not include
44 an allegation that the defendant possessed more than twenty-five grams
45 of marihuana.
46 § 7. Subdivision 6 of section 440.10 of the criminal procedure law, as
47 added by chapter 332 of the laws of 2010, is amended to read as follows:
48 6. If the court grants a motion under paragraph (i) or paragraph (j)
49 of subdivision one of this section, it must vacate the judgment and
50 dismiss the accusatory instrument, and may take such additional action
51 as is appropriate in the circumstances.
52 § 8. Paragraphs (i), (j) and (k) of subdivision 3 of section 160.50 of
53 the criminal procedure law, paragraphs (i) and (j) as added by chapter
54 905 of the laws of 1977 and paragraph (k) as added by chapter 835 of the
55 laws of 1977 and as relettered by chapter 192 of the laws of 1980, are
56 amended to read as follows:
S. 137--B 4
1 (i) prior to the filing of an accusatory instrument in a local crimi-
2 nal court against such person, the prosecutor elects not to prosecute
3 such person. In such event, the prosecutor shall serve a certification
4 of such disposition upon the division of criminal justice services and
5 upon the appropriate police department or law enforcement agency which,
6 upon receipt thereof, shall comply with the provisions of paragraphs
7 (a), (b), (c) and (d) of subdivision one of this section in the same
8 manner as is required thereunder with respect to an order of a court
9 entered pursuant to said subdivision one[.]; or
10 (j) following the arrest of such person, the arresting police agency,
11 prior to the filing of an accusatory instrument in a local criminal
12 court but subsequent to the forwarding of a copy of the fingerprints of
13 such person to the division of criminal justice services, elects not to
14 proceed further. In such event, the head of the arresting police agency
15 shall serve a certification of such disposition upon the division of
16 criminal justice services which, upon receipt thereof, shall comply with
17 the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of
18 this section in the same manner as is required thereunder with respect
19 to an order of a court entered pursuant to said subdivision one[.]; or
20 (k) (i) The accusatory instrument alleged a violation of article two
21 hundred twenty or section 240.36 of the penal law, prior to the taking
22 effect of article two hundred twenty-one of the penal law, or a
23 violation of article two hundred twenty-one of the penal law; (ii) the
24 sole controlled substance involved is marijuana; and (iii) the
25 conviction was only for a violation or violations[; and (iv) at least
26 three years have passed since the offense occurred].
27 § 9. The legislative law is amended by adding a new section 52-a to
28 read as follows:
29 § 52-a. Requirement with respect to bills increasing correctional
30 populations. 1. Whenever a committee reports a bill favorably which, if
31 passed, would increase or decrease the pretrial or sentenced population
32 of correctional facilities in this state, a majority of the committee
33 members voting may request that a racial and ethnic impact statement be
34 prepared. Each house of the legislature shall separately prescribe rules
35 requiring racial and ethnic impact statements to accompany, on a sepa-
36 rate form, bills and amendments to bills after such bills have been
37 reported from committee. Racial and ethnic impact statements shall be
38 prepared before the bill is considered for final passage. The statement
39 shall indicate whether the bill would have a disparate impact on the
40 racial and ethnic composition of the correctional facility population
41 and an explanation of that impact. Any racial and ethnic impact state-
42 ment printed with or prepared for a bill is solely for the purpose of
43 information, summarization and explanation for members of the legisla-
44 ture and shall not be construed to represent the intent of the legisla-
45 ture or either chamber thereof for any purpose. Each racial and ethnic
46 impact statement shall bear the following disclaimer: "The following
47 racial and ethnic impact statement is prepared for the benefit of the
48 members of the legislature, solely for purposes of information, summa-
49 rization and explanation and does not represent the intent of the legis-
50 lature or either chamber thereof for any purpose."
51 2. Racial and ethnic impact statements shall be made available to the
52 public in the same manner that the text of bills are made available to
53 the public.
54 § 10. This act shall take effect on the first of November next
55 succeeding the date upon which it shall have become a law.
