|SAME AS||SAME AS S06579-A|
|COSPNSR||Walker, Wright, Gottfried, Mosley, Rosenthal D, McDonald, Kim, Dinowitz, DenDekker, Bronson, Quart, Burke, Hevesi, Abinanti, Joyner, Cahill, Perry, Williams, Reyes, Vanel, Rodriguez, Taylor, Frontus, Jean-Pierre, Weprin, Otis, Gantt, Seawright, O'Donnell, Hunter, Cruz, Solages, Rosenthal L, Titus, Barron, Niou, Arroyo, Blake, Fernandez, Pichardo, Cook, De La Rosa, Griffin|
|Amd §§221.05 & 221.10, Pen L; amd §§1.20, 440.10 & 160.50, CP L; amd §1399-n, Pub Health L|
|Provides for vacating records for certain proceedings and modifies the definition of smoking.|
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STATE OF NEW YORK ________________________________________________________________________ 8420--A 2019-2020 Regular Sessions IN ASSEMBLY June 16, 2019 ___________ Introduced by M. of A. PEOPLES-STOKES -- read once and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law and the criminal procedure law, in relation to vacating records for certain proceedings; and to amend the public health law, in relation to the definition of smoking 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 in the second degree. 4 A person is guilty of unlawful possession of marihuana in the second 5 degree when he knowingly and unlawfully possesses marihuana. 6 Unlawful possession of marihuana in the second degree is a violation 7 punishable only by a fine of not more than [ one hundred] fifty dollars. 8 [ However, where the defendant has previously been convicted of an9 offense defined in this article or article 220 of this chapter, commit-10 ted within the three years immediately preceding such violation, it11 shall be punishable (a) only by a fine of not more than two hundred12 dollars, if the defendant was previously convicted of one such offense13 committed during such period, and (b) by a fine of not more than two14 hundred fifty dollars or a term of imprisonment not in excess of fifteen15 days or both, if the defendant was previously convicted of two such16 offenses committed during such period.] 17 § 2. Section 221.10 of the penal law, as amended by chapter 265 of the 18 laws of 1979 and subdivision 2 as amended by chapter 75 of the laws of 19 1995, is amended to read as follows: 20 § 221.10 [ Criminal] Unlawful possession of marihuana in the [ fifth] 21 first degree. 22 A person is guilty of [ criminal] unlawful possession of marihuana in 23 the [ fifth] first degree when he knowingly and unlawfully possesses[ :EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13421-05-9A. 8420--A 2 1 1. marihuana in a public place, as defined in section 240.00 of this2 chapter, and such marihuana is burning or open to public view; or3 2.] one or more preparations, compounds, mixtures or substances 4 containing marihuana and the preparations, compounds, mixtures or 5 substances are of an aggregate weight of more than [ twenty-five grams] 6 one ounce. 7 [ Criminal] Unlawful possession of marihuana in the [ fifth] first 8 degree is a [ class B misdemeanor] violation punishable only by a fine of 9 not more than two hundred dollars. 10 § 3. Subparagraph (ii) of paragraph (i) and paragraph (j) of subdivi- 11 sion 1 of section 440.10 of the criminal procedure law, subparagraph 12 (ii) of paragraph (i) as amended by section 3 of part OO of chapter 55 13 of the laws of 2019, paragraph (j) as amended by section 2 of part MMM 14 of chapter 59 of the laws of 2019, are amended and a new paragraph (k) 15 is added to read as follows: 16 (ii) official documentation of the defendant's status as a victim of 17 trafficking, compelling prostitution or trafficking in persons at the 18 time of the offense from a federal, state or local government agency 19 shall create a presumption that the defendant's participation in the 20 offense was a result of having been a victim of sex trafficking, compel- 21 ling prostitution or trafficking in persons, but shall not be required 22 for granting a motion under this paragraph; [ or] 23 (j) The judgment is a conviction for a class A or unclassified misde- 24 meanor entered prior to the effective date of this paragraph and satis- 25 fies the ground prescribed in paragraph (h) of this subdivision. There 26 shall be a rebuttable presumption that a conviction by plea to such an 27 offense was not knowing, voluntary and intelligent, based on ongoing 28 collateral consequences, including potential or actual immigration 29 consequences, and there shall be a rebuttable presumption that a 30 conviction by verdict constitutes cruel and unusual punishment under 31 section five of article one of the state constitution based on such 32 consequences[ .]; or 33 (k) The judgment occurred prior to the effective date of this para- 34 graph and is a conviction for an offense as defined by section 221.05 or 35 221.10 of the penal law as in effect prior to the effective date of this 36 paragraph in which case the court shall grant the motion. 37 § 4. Subdivision 6 of section 440.10 of the criminal procedure law, as 38 added by chapter 332 of the laws of 2010, is amended to read as follows: 39 6. If the court grants a motion under paragraph (i) or paragraph (k) 40 of subdivision one of this section, it must vacate the judgment and 41 dismiss the accusatory instrument, and may take such additional action 42 as is appropriate in the circumstances. 43 § 5. Paragraph (k) of subdivision 3 of section 160.50 of the criminal 44 procedure law, as added by chapter 835 of the laws of 1977 and as relet- 45 tered by chapter 192 of the laws of 1980, is amended to read as follows: 46 (k) [ (i)] The accusatory instrument alleged a violation of [ article47 two hundred twenty or section 240.36 of the penal law, prior to the48 taking effect of article two hundred twenty-one of the penal law, or a49 violation of article two hundred twenty-one of the penal law; (ii) the50 sole controlled substance involved is marijuana; (iii) the conviction51 was only for a violation or violations; and (iv) at least three years52 have passed since the offense occurred.]: 53 (i) article two hundred twenty or section 240.36 of the penal law 54 prior to the effective date of article two hundred twenty-one of the 55 penal law, and the sole controlled substance involved was marihuana and 56 the conviction was only for a violation or violations; orA. 8420--A 3 1 (ii) section 221.05 or 221.10 of the penal law prior to the effective 2 date of the chapter of laws of two thousand nineteen that amended this 3 section; or 4 (iii) section 221.05 or 221.10 of the penal law. 5 No defendant shall be required or permitted to waive eligibility for 6 sealing pursuant to this paragraph as part of a plea of guilty, sentence 7 or any agreement related to a conviction for a violation of section 8 221.05 or section 221.10 of the penal law and any such waiver shall be 9 deemed void and wholly unenforceable. 10 § 6. Section 1.20 of the criminal procedure law is amended by adding a 11 new subdivision 45 to read as follows: 12 45. "Expunge" means, where an arrest and any enforcement activity 13 connected with that arrest, including prosecution and any disposition in 14 any New York state court, is deemed a nullity and the accused is 15 restored, in contemplation of the law, to the status such individual 16 occupied before the arrest, prosecution and/or disposition; that records 17 of such arrest, prosecution and/or disposition shall be marked as 18 expunged or shall be destroyed as set forth in section 160.50 of this 19 chapter. Neither the arrest nor prosecution and/or disposition, if any, 20 of a matter deemed a nullity shall operate as a disqualification of any 21 person so accused to pursue or engage in any lawful activity, occupa- 22 tion, profession or calling. Except where specifically required or 23 permitted by statute or upon specific authorization of a superior court, 24 no such person shall be required to divulge information pertaining to 25 the arrest, prosecution and/or disposition of such a matter. 26 § 7. Section 160.50 of the criminal procedure law is amended by adding 27 a new subdivision 5 to read as follows: 28 5. (a) Expungement of certain marihuana-related records. Where an 29 accusatory instrument alleged an offense described in paragraph (k) of 30 subdivision three of this section, such count or counts of the accusato- 31 ry instrument in such criminal action or proceeding shall, on the effec- 32 tive date of this paragraph, in accordance with the provisions of this 33 paragraph, be vacated and dismissed, and all records of such count or 34 counts and, in the absence of any other valid count or counts, all 35 records of such action or proceeding shall be expunged, as described in 36 subdivision forty-five of section 1.20 of this chapter, and the matter 37 shall be considered terminated in favor of the accused and deemed a 38 nullity, having been rendered by this paragraph legally invalid. 39 (b) Duties of certain state officials and law enforcement agencies. 40 Commencing upon the effective date of this paragraph: 41 (i) the chief administrator of the courts shall promptly notify the 42 commissioner of the division of criminal justice services and the heads 43 of all appropriate police departments and other law enforcement agencies 44 of all counts that have been vacated and dismissed pursuant to paragraph 45 (a) of this subdivision and that, in the absence of any other valid 46 count or counts, all records of such action or proceeding shall be 47 expunged and the matter shall be considered terminated in favor of the 48 accused and deemed a nullity, having been rendered legally invalid. Upon 49 receipt of notification of such vacatur, dismissal and expungement, all 50 records relating to such count or counts, or the criminal action or 51 proceeding, as the case may be, shall be marked as expunged by conspicu- 52 ously indicating on the face of the record and on each page or at the 53 beginning of the digitized file of the record that the record has been 54 designated as expunged. Upon the written request of the individual whose 55 case has been expunged or their designated agent, such records shall be 56 destroyed. Such records and papers shall not be made available to anyA. 8420--A 4 1 person, except the individual whose case has been expunged or such 2 person's designated agent; and 3 (ii) where automatic vacatur, dismissal, and expungement, including 4 record destruction if requested, is required by this subdivision but any 5 record of the court system in this state has not yet been updated to 6 reflect same (A) notwithstanding any other provision of law except as 7 provided in paragraph (d) of subdivision one of this section and para- 8 graph (e) of subdivision four of section eight hundred thirty-seven of 9 the executive law: (1) when the division of criminal justice services 10 conducts a search of its criminal history records, maintained pursuant 11 to subdivision six of section eight hundred thirty-seven of the execu- 12 tive law, and returns a report thereon, all references to a conviction 13 for an offense described in paragraph (k) of subdivision three of this 14 section shall be excluded from such report; and (2) the chief adminis- 15 trator of the courts shall develop and promulgate rules as may be neces- 16 sary to ensure that no written or electronic report of a criminal histo- 17 ry record search conducted by the office of court administration 18 contains information relating to a conviction for an offense described 19 in paragraph (k) of subdivision three of this section; and (B) where 20 court records relevant to such matter cannot be located or have been 21 destroyed, and a person or the person's attorney presents to an appro- 22 priate court employee a fingerprint record of the New York state divi- 23 sion of criminal justice services, or a copy of a court disposition 24 record or other relevant court record, which indicates that a criminal 25 action or proceeding against such person was terminated by conviction of 26 an offense described in paragraph (k) of subdivision three of this 27 section, then promptly, and in any event within thirty days after such 28 notice to such court employee, the chief administrator of the courts or 29 his or her designee shall assure that such vacatur, dismissal, and 30 expungement, including record destruction if requested, have been 31 completed in accordance with subparagraph (i) of this paragraph. 32 (c) Vacatur, dismissal and expungement as set forth in this subdivi- 33 sion is without prejudice to any person or such person's attorney seek- 34 ing further relief pursuant to article four hundred forty of this chap- 35 ter or any other law. Nothing in this section is intended or shall be 36 interpreted to diminish or abrogate any right or remedy otherwise avail- 37 able to any person. 38 (d) The office of court administration, in conjunction with the divi- 39 sion of criminal justice services, shall develop an affirmative informa- 40 tion campaign and widely disseminate to the public, through its website, 41 public service announcements and other means, in multiple languages and 42 through multiple outlets, information concerning the expungement, vaca- 43 tur and resentencing of marihuana convictions established by the chapter 44 of the laws of two thousand nineteen that added this paragraph, includ- 45 ing, but not limited to, the automatic expungement of certain past 46 convictions, the means by which an individual may file a motion for 47 vacatur, dismissal and expungement of certain past convictions, and the 48 impact of such changes on such person's criminal history records. 49 § 8. Subdivision 8 of section 1399-n of the public health law, as 50 amended by chapter 13 of the laws of 2003, is amended to read as 51 follows: 52 8. "Smoking" means the burning of a lighted cigar, cigarette, pipe or 53 any other matter or substance which contains tobacco or marihuana as 54 defined in section thirty-three hundred two of this chapter. 55 § 9. This act shall take effect on the thirtieth day after it shall 56 have become a law.