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A08420 Summary:

BILL NOA08420A
 
SAME ASSAME AS S06579-A
 
SPONSORPeoples-Stokes
 
COSPNSRWalker, 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
 
MLTSPNSR
 
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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A08420 Text:



 
                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  an
     9  offense  defined in this article or article 220 of this chapter, commit-
    10  ted within the three years  immediately  preceding  such  violation,  it
    11  shall  be  punishable  (a)  only  by a fine of not more than two hundred
    12  dollars, if the defendant was previously convicted of one  such  offense
    13  committed  during  such  period,  and (b) by a fine of not more than two
    14  hundred fifty dollars or a term of imprisonment not in excess of fifteen
    15  days or both, if the defendant was  previously  convicted  of  two  such
    16  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.
                                                                   LBD13421-05-9

        A. 8420--A                          2

     1    1. marihuana in a public place, as defined in section 240.00  of  this
     2  chapter, and such marihuana is burning or open to public view; or
     3    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 [article
    47  two hundred twenty or section 240.36 of the  penal  law,  prior  to  the
    48  taking  effect  of article two hundred twenty-one of the penal law, or a
    49  violation of article two hundred twenty-one of the penal law;  (ii)  the
    50  sole  controlled  substance  involved is marijuana; (iii) the conviction
    51  was only for a violation or violations; and (iv) at  least  three  years
    52  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; or

        A. 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 any

        A. 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.
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