NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8432
SPONSOR: Peoples-Stokes TITLE OF BILL: An act to amend the criminal procedure law, in
relation to vacating records for certain proceedings; and to repeal
certain provisions of such law relating thereto
PURPOSE OR GENERAL IDEA OF BILL:
To make conforming changes to a chapter of laws of 2019 that decriminal-
ized possession of small amounts marijuana offenses and providing for
the expungement and vacatur of the records of such convictions.
SUMMARY OF PROVISIONS:
Section 1 repeals and replaces paragraph (k) of subdivision 1 of section
440.10 of the penal law.
Section 2 amends paragraph (k) of subdivision 3 of section 160.50 of the
criminal procedure law.
Section 3 amends paragraph (a) of subdivision 5 of section 160.50 of the
criminal procedure law.
Section 4 amends subparagraph (i) of paragraph (b) of subdivision 5 of
section 160.50 of the criminal procedure law.
Section 5 is the effective date.
JUSTIFICATION:
Since 1977, the possession of small amounts of marijuana (less than 25
grams) has been a violation punishable only by a fine for a first
offense. However, once that small amount of marijuana becomes open to
public view or is being burned, rather than being punishable by a fine,
that action is often charged as a misdemeanor. This inconsistency has
undermined the intention of the legislature decades ago to ensure that
the possession of small amounts of marijuana does not serve to burden
individuals with the challenging realities of living with a criminal
record. This bill makes conforming changes to a chapter of laws of 2019
that further reduced the penalties for small amounts of marijuana
possession, to avoid inconsistent application of the law. Courts will
continue to have the authority to order adjournments in contemplation of
dismissal (e.g., CPL 170.56, 210.46), and grant other ameliorative
relief.
Additionally, at a time where racial inequalities are still rampantly;
obvious in the application of these laws, it is important to provide
recourse for individuals who have committed minor infractions to have
their records expunged and vacated. This process will allow individuals
who may have prior low-level convictions to avoid ongoing consequences
including barriers to employment, housing, and other important services.
This bill is necessary not only to limit the stigma and collateral
consequences associated with a conviction for basic marijuana
possession, behavior the Legislature has already sought to decriminal-
ize, but also to address the rampant disparity that exists regarding the
implementation and effect of these laws.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
Takes effect on the same date and the same manner as legislative bills
S.6579-A and A.8420-A.
STATE OF NEW YORK
________________________________________________________________________
8432
2019-2020 Regular Sessions
IN ASSEMBLY
June 20, 2019
___________
Introduced by M. of A. PEOPLES-STOKES -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the criminal procedure law, in relation to vacating
records for certain proceedings; and to repeal certain provisions of
such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (k) of subdivision 1 of section 440.10 of the
2 criminal procedure law, as added by a chapter of the laws of 2019,
3 amending the penal law and the criminal procedure law relating to vacat-
4 ing records for certain proceedings, as proposed in legislative bills
5 numbers S. 6579-A and A. 8420-A, is REPEALED and a new paragraph (k) is
6 added to read as follows:
7 (k) The judgment occurred prior to the effective date of this para-
8 graph and is a conviction for an offense as defined in subparagraph (i)
9 or (ii) of paragraph (k) of subdivision three of section 160.50 of this
10 part, in which case the court shall presume that a conviction by plea
11 for the aforementioned offenses was not knowing, voluntary and intelli-
12 gent if it has severe or ongoing consequences, including but not limited
13 to potential or actual immigration consequences, and shall presume that
14 a conviction by verdict for the aforementioned offenses constitutes
15 cruel and unusual punishment under section five of article one of the
16 state constitution, based on those consequences. The people may rebut
17 these presumptions.
18 § 2. Paragraph (k) of subdivision 3 of section 160.50 of the criminal
19 procedure law, as amended by a chapter of the laws of 2019, amending the
20 penal law and the criminal procedure law relating to vacating records
21 for certain proceedings, as proposed in legislative bills numbers S.
22 6579-A and A. 8420-A, is amended to read as follows:
23 (k) (i) The [accusatory instrument alleged] conviction was for a
24 violation of[:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13421-10-9
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1 (i)] article two hundred twenty or section 240.36 of the penal law
2 prior to the effective date of article two hundred twenty-one of the
3 penal law, and the sole controlled substance involved was marihuana and
4 the conviction was only for a violation or violations; or
5 (ii) the conviction is for an offense defined in section 221.05 or
6 221.10 of the penal law prior to the effective date of the chapter of
7 the laws of two thousand nineteen that amended this [section] paragraph;
8 or
9 (iii) the conviction is for an offense defined in section 221.05 or
10 221.10 of the penal law.
11 No defendant shall be required or permitted to waive eligibility for
12 sealing or expungement pursuant to this [paragraph] section as part of a
13 plea of guilty, sentence or any agreement related to a conviction for a
14 violation of section 221.05 or section 221.10 of the penal law and any
15 such waiver shall be deemed void and wholly unenforceable.
16 § 3. Paragraph (a) of subdivision 5 of section 160.50 of the criminal
17 procedure law, as added by a chapter of the laws of 2019, amending the
18 penal law and the criminal procedure law relating to vacating records
19 for certain proceedings, as proposed in legislative bills numbers S.
20 6579-A and A. 8420-A, is amended to read as follows:
21 (a) Expungement of certain marihuana-related records. [Where an accu-
22 satory instrument alleged] A conviction for an offense described in
23 paragraph (k) of subdivision three of this section[, such count or
24 counts of the accusatory instrument in such criminal action or proceed-
25 ing] shall, on and after the effective date of this paragraph, in
26 accordance with the provisions of this paragraph, be vacated and
27 dismissed, and all records of such [count or counts] conviction or
28 convictions and[, in the absence of any other valid count or counts, all
29 records of such action or proceeding] related to such conviction or
30 convictions shall be expunged, as described in subdivision forty-five of
31 section 1.20 of this chapter, and the matter shall be considered termi-
32 nated in favor of the accused and deemed a nullity, having been rendered
33 by this paragraph legally invalid. All such records for an offense
34 described in this paragraph where the conviction was entered on or
35 before the effective date of the chapter of the laws of 2019 that
36 amended this paragraph shall be expunged promptly and, in any event, no
37 later than one year after such effective date.
38 § 4. Subparagraph (i) of paragraph (b) of subdivision 5 of section
39 160.50 of the criminal procedure law, as added by a chapter of the laws
40 of 2019, amending the penal law and the criminal procedure law relating
41 to vacating records for certain proceedings, as proposed in legislative
42 bills numbers S. 6579-A and A. 8420-A, is amended to read as follows:
43 (i) the chief administrator of the courts shall promptly notify the
44 commissioner of the division of criminal justice services and the heads
45 of all appropriate police departments, district attorney's offices and
46 other law enforcement agencies of all [counts] convictions that have
47 been vacated and dismissed pursuant to paragraph (a) of this subdivision
48 and that[, in the absence of any other valid count or counts,] all
49 records [of such action or proceeding] related to such convictions shall
50 be expunged and the matter shall be considered terminated in favor of
51 the accused and deemed a nullity, having been rendered legally invalid.
52 Upon receipt of notification of such vacatur, dismissal and expungement,
53 all records relating to such [count or counts] conviction or
54 convictions, or the criminal action or proceeding, as the case may be,
55 shall be marked as expunged by conspicuously indicating on the face of
56 the record and on each page or at the beginning of the digitized file of
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1 the record that the record has been designated as expunged. Upon the
2 written request of the individual whose case has been expunged or their
3 designated agent, such records shall be destroyed. Such records and
4 papers shall not be made available to any person, except the individual
5 whose case has been expunged or such person's designated agent; and
6 § 5. This act shall take effect on the same date and in the same
7 manner as a chapter of the laws of 2019, amending the penal law and the
8 criminal procedure law relating to vacating records for certain
9 proceedings, as proposed in legislative bills numbers S. 6579-A and A.
10 8420-A, takes effect.
