A00332 Summary:

Amd §221.10, Pen L
Relates to persons not being charged for possession of marihuana in certain circumstances.
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A00332 Actions:

01/05/2017referred to codes
01/03/2018referred to codes
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A00332 Committee Votes:

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A00332 Floor Votes:

There are no votes for this bill in this legislative session.
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A00332 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  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.
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A00332 Text:

                STATE OF NEW YORK
                               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.
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