NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A332
SPONSOR: Perry
 
TITLE OF BILL: An act to amend the penal law, in relation to enacting
the possession of marihuana enforcement clarification act
 
PURPOSE: To prohibit the charging of the crime of possession of mari-
huana in the fifth degree under this section when the accused person,
not of their own Volition, but upon the, direction of a police officer,
or other law enforcement, is requested or compelled to engage in behav-
ior that results in. the public display of marihuana in the amount of 25
grams or less.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill amends subdivision 2 of § 221.10 of the penal
law to provide that a person shall not be charged under this section, if
they are requested or compelled by a police or law enforcement officer,
lawfully exercising their duty as a police officer, to engage in behav-
ior that results in the public display of marihuana.
 
JUSTIFICATION:
Due to growing public concerns, many questions have been raised about
certain police practices in the processing of persons held on suspicion
of possessing marihuana. It is now well known and acknowledged by the
NYPD, and also documented by court records, that many individuals proc-
essed by the NYPD, for possession of small quantities of marihuana (25
grams and less) have been charged and prosecuted under penal law 221.10,
a misdemeanor, when they should have been charged under penal law
221.05, a violation.
Section 221.10 of the Penal Law, criminal possession of marihuana in the
fifth degree, a class B misdemeanor, is charged when an individual is
found in possession of more than 25 grams of marihuana, and applies to
possession of less than 25 grams, only if the marihuana is in a public
place and is burning or open to public view. There have been numerous
complaints received about the police stopping someone, ordering the
person to empty the contents of a bag, purse, pockets, or other closed
container, thereby placing in public view any contraband, including any
marihuana in their possession that would not otherwise be exposed.
Notwithstanding, the fact that the marihuana was exposed to the public
due only to the suspect's unwitting compliance with what is believed to
be a lawful order from a police officer, the police practice has been to
charge the suspect with the higher offense for which an arrest can be
made.
When the legislature enacted Penal Law 221.05, the legislative intent
was to decriminalize the personal possession of less than 25 grams of
marihuana. However, certain policing practices and behavior have created
confusion as to-the appropriate application of the law and thus to the
detriment of justice and fair enforcement of the law. This bill will
make it explicitly clear and unambiguous that to support a charge under
Subdivision 1 of Penal Law 221.10, "...the public display of marihuana
must be due to activity undertaken of the subject's own volition..."
codifying the language in NYPD Operations Order 49: Charging Standards
for Possession of-Marihuana in a Public Place Open to Public View, dated
September '19, 2011, issued on by former Commissioner Ray Kelly in
response to the significant concerns raised about police practices
regarding enforcement of Penal Law 221.05 vs. Penal Law 221.10. By codi-
fying the NYPD order, which was issued to provide clear and precise
standards to be applied to enforcement of the law, we also extend appli-
cation of the standard to statewide policing and processing in enforce-
ment of the law as it relates to possession of marihuana.
 
PRIOR LEGISLATIVE HISTORY:
2015-2016: A.6493 - Referred to Codes
2013-2014: A.5983 -Referred to Codes
2011-2012: A.8676 - Referred to Codes
 
FISCAL IMPLICATIONS:
State savings on the cost of processing improperly charged arrests which
routinely results in immediate dismissals.
 
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
332
2017-2018 Regular Sessions
IN ASSEMBLY
January 5, 2017
___________
Introduced by M. of A. PERRY -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to enacting the possession of
marihuana enforcement clarification act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 2 of section 221.10 of the penal law, as
2 amended by chapter 75 of the laws of 1995, is amended to read as
3 follows:
4 2. one or more preparations, compounds, mixtures or substances
5 containing marihuana and the preparations, compounds, mixtures or
6 substances are of an aggregate weight of more than twenty-five grams;
7 provided that a person shall not be charged under this section who is
8 requested or compelled by a peace officer as defined in section 2.10 of
9 the criminal procedure law or a law enforcement officer as defined in
10 section 2.15 of the criminal procedure law or a police officer as
11 defined in subdivision thirty-four of section 1.20 of the criminal
12 procedure law to engage in behavior that results in the public display
13 of marihuana, or when the marihuana is publicly displayed pursuant to a
14 search of the subject's person or upon direction of the subject to
15 surrender the contents of his or her pockets or otherwise closed
16 container by a peace officer, law enforcement officer or police officer
17 lawfully exercising his or her duty as a police officer.
18 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06405-01-7