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On June 20, 2019, the New York State Senate passed bill S6579A, relating to the decriminalization of certain marijuana related offenses. It is important to note that this does NOT legalize marijuana possession in New York State, so don’t start lighting up just yet. As of the writing of this article (June 21, 2019), the bill has not yet been signed into law by Governor Cuomo, although he has indicated that he will be signing it imminently. UPDATE: On July 29, 2019, Governor Cuomo signed this legislation, and it will take effect on August 28, 2019.

There was an effort to legalize marijuana possession, however it failed and this was the (temporary) compromise reached by the Senate. There are some very important changes to the laws involving marijuana possession which will affect many New Yorkers going forward, and will also affect up to 600,000 New Yorkers who have already been convicted under the current statutes.

Under the existing statutes, there are two low-level marijuana offenses. The first is Unlawful Possession of Marijuana under Penal Law Section 221.05, which is a violation and not a crime, and is punishable by a sliding scale of penalties starting at $100.00 and going up to a maximum of 15 days in jail for multiple convictions. The second, more serious offense, is Criminal Possession of Marijuana in the Fifth Degree under Penal Law Section 221.10, which is a class B misdemeanor and punishable by up to 90 days in jail.

Unlawful Possession of Marijuana is committed simply by possessing marijuana, such as in a pocket or glove compartment. Criminal Possession of Marijuana in the Fifth Degree is committed by smoking marijuana or otherwise possessing it in public view in a public place. This crime is also committed by possessing more than 25 grams of marijuana (a little less than 9/10 of an ounce).

Under the new law, Unlawful Possession of Marijuana is now called Unlawful Possession of Marijuana in the Second Degree. It remains a violation, however it is punishable by a maximum of a $50.00 fine, regardless of how many times someone is convicted.

Criminal Possession of Marijuana in the Fifth Degree is now called Unlawful Possession of Marijuana in the First Degree. It is no longer a misdemeanor, but is now a violation (not a crime), and it is punishable by a maximum of a $200.00 fine, no matter how many times someone is convicted. It also removed the clause relating to possession of burning marijuana, or possession in a public place, in public view, meaning that now anyone caught smoking or possessing in public can only be charged under the other, lesser, statute Unlawful Possession of Marijuana in the Second Degree. The amount of marijuana that needs to be possessed to violate this new statute has also been increased, from 25 grams to more than one ounce.

The immediate benefit to those who are convicted of this offense is that they are no longer being convicted of a crime, which will permit them to answer “No” on any future job or school applications which ask if they have any criminal convictions. It also removes the specter of jail time from a conviction under either of these offenses, regardless of prior criminal history or convictions.

While this helps those charged with low-level marijuana offenses going forward, what about the hundreds of thousands of those convicted in the past? This bill helps those people as well. Perhaps the most important addition to the law is a change to the statute relating to the procedure for filing a motion to vacate a prior judgment (plea or conviction). This new law will be effective RETROACTIVELY, meaning that anyone who has been convicted of one of these two offenses in the past can file a motion to vacate that conviction, and enjoy the benefit of the new law. This will have the greatest effect on anyone previously convicted of Criminal Possession of Marijuana in the Fifth Degree and has been considered a criminal due to that prior conviction. Once their motion is filed and granted, their criminal record (assuming no other convictions) will disappear.

Another important change to the law means that a motion to vacate a prior conviction might not even be necessary.  For the first time ever, New York State will begin to expunge records of conviction for these charges.  Previously, low-level convictions for violations only were sealable under the law after three years.  However, the new law adds the definition of “expungement” to the law, which is a more powerful remedy than sealing, inasmuch as the law requires all records of the conviction as well as the underlying arrest to be destroyed, and affirmatively states that anyone with an expunged record is not required to admit to even being arrested.  This will be very helpful to those people applying for jobs or for colleges who are concerned about the effect a prior arrest might have.

The three year waiting period has also been removed, and the expungements are effective retroactively.  This means that anyone with a conviction for the two offenses described in this article will have their record of arrest and conviction destroyed, as well as anyone going forward who is convicted of these two offenses.  It isn’t clear what yet what the mechanism will be to ensure that this happens, but it is suspected that it will be automatic, and the responsibility of the State to ensure that this occurs.

It is important to note, again, that this new law does NOT legalize the possession of marijuana, it merely decriminalizes one of the existing offenses, and reduces the potential penalties involved. It is still a crime to possess greater than two ounces of marijuana, or to sell marijuana in any amount.

If you are currently charged with a marijuana related offense, or if you have previously been convicted of an offense that you believe is covered under this bill, make sure you speak with an experienced criminal defense attorney to discuss your options and how best to protect your rights.

The Law Office of Glenn Kurtzrock is available to assist you with your criminal case. We’re available 24 hours a day, 7 days a week. Call right now for a free consultation at (631) 539-1640, or visit our website at https://www.kurtzrocklaw.com