NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2142
SPONSOR: Peoples-Stokes
 
TITLE OF BILL:
An act to amend the penal law and the criminal procedure law, in
relation to sealing records for certain proceedings
 
PURPOSE:
To permit the sealing of certain marijuana-possession convictions under
section 221.10 of the Penal Law.
 
SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 221.05 of the Penal Law, New York's
basic possession of marijuana statute. It provides that a previous
conviction under subdivision one of section 221.10 of the penal law
shall not result in an increase in the maximum fine for a subsequent
conviction under PL § 221.05, the basic marijuana statute. Subdivision
one of PL § 221.10 prohibits knowingly and unlawfully possessing in a
public place marijuana that is burning or open to public view.
Section 2 of the bill adds 221.10 of the Penal Law to the list of
offenses included in paragraph (k) of subdivision 3 for which sealing of
records is required upon conviction. Further, it prohibits a waiver of
sealing as part of a plea agreement.
Section 3 of the bill makes retroactive certain aspects of this bill by
providing a mechanism for persons convicted under 221.10, and in certain
circumstances 221.05, prior to the effective date of the bill, to have
those records sealed.
 
JUSTIFICATION:
Under New York law, possession of 25 grams of marijuana or less is a
violation, treated under PL 221.05 as essentially a traffic offense.
However, often individuals possessing a small amount of marijuana are
charged with a misdemeanor offense under section 221.10 of the penal
law. This is largely due the requirement in current law that the mari-
juana not be burning in a public place or in public view. It has been
widely reported that police officers sometimes request or demand that
suspects empty their pockets or purse-- and then charge them under the
misdemeanor law based on "public view" exposure of the substance"*
Many of the cases brought under § 221.10 (1), charging small-quantity
possession of marijuana in a public place and open to public view, could
be handled effectively with an appearance ticket and a potential fine,
and without the stigma and consequences that may follow a misdemeanor
level conviction. However, instead of achieving decriminalization of
marijuana, as was intended in the 1977 statute, individuals throughout
New York are still facing misdemeanor prosecution for the simple
possession of a small amount of marijuana.
In 2014, nearly 28,000 arrests were made in New York City and nearly
4,000 outside of NYC for possession of marijuana, an average of 2,339
per month.** A permanent criminal record is the most enduring and long
lasting cost of these arrests. Records of arrests and convictions are
now are readily accessible to the public. Employers, landlords, credit
agencies, licensing boards, and student loan providers routinely search
databases for background checks on applicants. Nurses, security guards,
home health aides and others licensed by the state may be at risk of
losing their licenses and jobs based on one misdemeanor conviction. For
the immigrant population, such a conviction may, depending on the
circumstances, result in deportation from the United States. Landlords
and public housing authorities may seek to evict a person as a result of
such a conviction. While an individual misdemeanor conviction for
possession of marijuana often does not result in jail time, such a
conviction may have the effect of exposing an individual to significant
legal difficulties and a lifetime of collateral consequences.
Furthermore, these effects are disproportionately felt in New York's
African American and Latino communities. According to the New York State
Division of Criminal Justice Services, 50.47 percent of those arrested
for possession of marijuana in 2015 were African American, and 38.18
percent of the persons arrested were Latino.*** While studies show that
white persons use marijuana at comparable rates, only 8 percent of those
arrested for possession of marijuana are white. **** Thus, the crippling
consequences of such an arrest or conviction mainly impact only the
minority segment of our population.
This bill is necessary not only to limit the stigma and collateral
consequences associated with a conviction for basic marijuana
possession, behavior the Legislature has already sought to decriminal-
ize, but also to address the rampant disparity that exists regarding the
implementation and effect of these laws.
 
PRIOR LEGISLATIVE HISTORY:
A.10092 of 2015/2016
 
FISCAL IMPLICATIONS:
Minimal.
 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it has become law.
*See People v Johnson, 2016 N.Y. Misc. LEX1S 629, 2016 NY Slip Op 26057
(N.Y. City Crim. Ct. Mar. 2, 2016)
**New York State Division of Criminal Justice Services. Ages 16 and
older. All arrests where marijuana possession was the only or highest
charge. 1-Itt://marijuana-arrests.com/ May 2014.
*** Victoria Bekiempis (June 12, 2015), Whites Account for 8% of NY
Marijuana Arrests. Newsweek. Online Edition.
**** Id.
STATE OF NEW YORK
________________________________________________________________________
2142
2017-2018 Regular Sessions
IN ASSEMBLY
January 17, 2017
___________
Introduced by M. of A. PEOPLES-STOKES -- read once and referred to the
Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to sealing records for certain proceedings
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 221.05 of the penal law, as added by chapter 360 of
2 the laws of 1977, is amended to read as follows:
3 § 221.05 Unlawful possession of marihuana.
4 A person is guilty of unlawful possession of marihuana when he know-
5 ingly and unlawfully possesses marihuana.
6 Unlawful possession of marihuana is a violation punishable only by a
7 fine of not more than one hundred dollars. However, where the defendant
8 has previously been convicted of [an offense] a crime defined in this
9 article, except a crime defined in section 221.10 of this article
10 provided, however, that the record of such conviction does not demon-
11 strate a conviction under subdivision two of such section 221.10, or
12 article 220 of this chapter, committed within the three years immediate-
13 ly preceding such violation, it shall be punishable (a) only by a fine
14 of not more than two hundred dollars, if the defendant was previously
15 convicted of one such offense committed during such period, and (b) by a
16 fine of not more than two hundred fifty dollars or a term of imprison-
17 ment not in excess of fifteen days or both, if the defendant was previ-
18 ously convicted of two such offenses committed during such period.
19 § 2. Paragraph (k) of subdivision 3 of section 160.50 of the criminal
20 procedure law, as added by chapter 835 of the laws of 1977 and as relet-
21 tered by chapter 192 of the laws of 1980, is amended to read as follows:
22 (k) (i) The accusatory instrument alleged a violation of article two
23 hundred twenty or section 240.36 of the penal law, prior to the taking
24 effect of article two hundred twenty-one of the penal law, or a
25 violation of article two hundred twenty-one of the penal law; (ii) the
26 sole controlled substance involved is marijuana; and (iii) the
27 conviction was only for a violation or violations[; and (iv) at least
28 three years have passed since the offense occurred] of section 221.10 of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05532-01-7
A. 2142 2
1 the penal law provided, however, that the record of such conviction does
2 not demonstrate a conviction under subdivision two of such section
3 221.10, or for a petty offense or offenses. No defendant shall be
4 required or permitted to waive eligibility for sealing pursuant to this
5 paragraph as part of a plea of guilty, sentence or any agreement related
6 to a conviction for a violation of section 221.05 or section 221.10 of
7 the penal law and any such waiver shall be deemed void and wholly unen-
8 forceable.
9 § 3. Section 160.50 of the criminal procedure law is amended by adding
10 three new subdivisions 5, 6 and 7 to read as follows:
11 5. A person convicted of a violation of section 221.10 of the penal
12 law, other than a conviction after trial of, or plea of guilty to,
13 subdivision two of such section 221.10, prior to the effective date of
14 this subdivision may upon motion apply to the court in which such termi-
15 nation occurred, upon not less than twenty days notice to the district
16 attorney, for an order granting to such person the relief set forth in
17 subdivision one of this section, and such order shall be granted unless
18 the district attorney demonstrates that the interests of justice require
19 otherwise.
20 6. (a) Notwithstanding any other provision of law except as provided
21 in paragraph (d) of subdivision one of this section and paragraph (e) of
22 subdivision four of section eight hundred thirty-seven of the executive
23 law: (i) when the division of criminal justice services conducts a
24 search of its criminal history records, maintained pursuant to subdivi-
25 sion six of section eight hundred thirty-seven of the executive law, and
26 returns a report thereon, all references to a conviction for a violation
27 of section 221.10 of the penal law, other than a conviction after trial
28 of, or plea of guilty to, subdivision two of such section 221.10, shall
29 be excluded from such report; and (ii) the chief administrator of the
30 courts shall develop and promulgate rules as may be necessary to ensure
31 that no written or electronic report of a criminal history record search
32 conducted by the office of court administration contains information
33 relating to a conviction for a violation of section 221.10 of the penal
34 law, other than a conviction after trial of, or plea of guilty to,
35 subdivision two of such section 221.10, unless such search is conducted
36 solely for a bona fide research purpose, provided that such information,
37 if so disseminated, shall be disseminated in accordance with procedures
38 established by the chief administrator of the courts to assure the secu-
39 rity and privacy of identification and information data, which shall
40 include the execution of an agreement which protects the confidentiality
41 of the information and reasonably protects against data linkage to indi-
42 viduals.
43 (b) Nothing contained in this subdivision shall be deemed to permit or
44 require the release, disclosure or other dissemination by the division
45 of criminal justice services or the office of court administration of
46 criminal history record information that has been sealed in accordance
47 with law.
48 7. A person convicted of a violation of section 221.05 of the penal
49 law shall, on the effective date of this subdivision, have such
50 conviction immediately sealed pursuant to subdivision one of this
51 section if such conviction occurred less than three years prior to such
52 effective date.
53 § 4. This act shall take effect on the sixtieth day after it shall
54 have become a law.