A02142 Summary:

COSPNSRCrespo, Zebrowski, Barron, Blake, Jaffee, De La Rosa, Rosenthal L, Hyndman, Jean-Pierre, Mosley, Sepulveda, Taylor, Walker, Lupardo, Simon, Wright, Espinal
Amd §221.05, Pen L; amd §160.50, CP L
Relates to sealing records for certain proceedings that terminate in favor of the accused where the charges relate to the possession of marihuana.
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A02142 Actions:

01/17/2017referred to codes
02/02/2017advanced to third reading cal.33
02/14/2017passed assembly
02/14/2017delivered to senate
01/03/2018DIED IN SENATE
01/03/2018ordered to third reading cal.158
06/06/2018passed assembly
06/06/2018delivered to senate
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A02142 Floor Votes:

DATE:02/14/2017Assembly Vote  YEA/NAY: 95/38
BarnwellYDe La RosaYHawleyNOMagnarelliYPaulinYSolagesY
BenedettoYDilanYHooperYMcDonaldYPheffer AmatoYStirpeY
BrabenecNOEnglebrightYJean-PierreYMiller B NORaNOVanelY
BraunsteinYErrigoNOJenneYMiller MGYRaiaNOWalkerY
BrindisiYFahyYJohnsYMiller MLNORamosERWallaceY
CookYGjonajYLawrenceERNorrisNOSeawrightYMr. SpeakerY

DATE:06/06/2018Assembly Vote  YEA/NAY: 98/41
AshbyNOCurranNOGoodellNOMalliotakisNOPheffer AmatoYStirpeY
BarrettYDe La RosaYHevesiYMiller B NORaNOTitoneY
BarronYDenDekkerYHikindYMiller MGYRaiaNOTitusY
BenedettoYDickensYHooperYMiller MLERRamosYVanelY
BohenYD'UrsoYJean-PierreYMosleyYRosenthal D YWalterNO
BrabenecNOEnglebrightYJenneYMurrayNORosenthal L YWeinsteinY
ByrneNOFinchNOLalorNOOrtizYSimonYMr. SpeakerY

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A02142 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Peoples-Stokes
  TITLE OF BILL: An act to amend the penal law and the criminal procedure law, in relation to sealing records for certain proceedings   PURPOSE: To permit the sealing of certain marijuana-possession convictions under section 221.10 of the Penal Law.   SUMMARY OF PROVISIONS: Section 1 of the bill amends section 221.05 of the Penal Law, New York's basic possession of marijuana statute. It provides that a previous conviction under subdivision one of section 221.10 of the penal law shall not result in an increase in the maximum fine for a subsequent conviction under PL § 221.05, the basic marijuana statute. Subdivision one of PL § 221.10 prohibits knowingly and unlawfully possessing in a public place marijuana that is burning or open to public view. Section 2 of the bill adds 221.10 of the Penal Law to the list of offenses included in paragraph (k) of subdivision 3 for which sealing of records is required upon conviction. Further, it prohibits a waiver of sealing as part of a plea agreement. Section 3 of the bill makes retroactive certain aspects of this bill by providing a mechanism for persons convicted under 221.10, and in certain circumstances 221.05, prior to the effective date of the bill, to have those records sealed.   JUSTIFICATION: Under New York law, possession of 25 grams of marijuana or less is a violation, treated under PL 221.05 as essentially a traffic offense. However, often individuals possessing a small amount of marijuana are charged with a misdemeanor offense under section 221.10 of the penal law. This is largely due the requirement in current law that the mari- juana not be burning in a public place or in public view. It has been widely reported that police officers sometimes request or demand that suspects empty their pockets or purse-- and then charge them under the misdemeanor law based on "public view" exposure of the substance"* Many of the cases brought under § 221.10 (1), charging small-quantity possession of marijuana in a public place and open to public view, could be handled effectively with an appearance ticket and a potential fine, and without the stigma and consequences that may follow a misdemeanor level conviction. However, instead of achieving decriminalization of marijuana, as was intended in the 1977 statute, individuals throughout New York are still facing misdemeanor prosecution for the simple possession of a small amount of marijuana. In 2014, nearly 28,000 arrests were made in New York City and nearly 4,000 outside of NYC for possession of marijuana, an average of 2,339 per month.** A permanent criminal record is the most enduring and long lasting cost of these arrests. Records of arrests and convictions are now are readily accessible to the public. Employers, landlords, credit agencies, licensing boards, and student loan providers routinely search databases for background checks on applicants. Nurses, security guards, home health aides and others licensed by the state may be at risk of losing their licenses and jobs based on one misdemeanor conviction. For the immigrant population, such a conviction may, depending on the circumstances, result in deportation from the United States. Landlords and public housing authorities may seek to evict a person as a result of such a conviction. While an individual misdemeanor conviction for possession of marijuana often does not result in jail time, such a conviction may have the effect of exposing an individual to significant legal difficulties and a lifetime of collateral consequences. Furthermore, these effects are disproportionately felt in New York's African American and Latino communities. According to the New York State Division of Criminal Justice Services, 50.47 percent of those arrested for possession of marijuana in 2015 were African American, and 38.18 percent of the persons arrested were Latino.*** While studies show that white persons use marijuana at comparable rates, only 8 percent of those arrested for possession of marijuana are white. **** Thus, the crippling consequences of such an arrest or conviction mainly impact only the minority segment of our population. 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: A.10092 of 2015/2016   FISCAL IMPLICATIONS: Minimal.   EFFECTIVE DATE: This act shall take effect on the sixtieth day after it has become law. *See People v Johnson, 2016 N.Y. Misc. LEX1S 629, 2016 NY Slip Op 26057 (N.Y. City Crim. Ct. Mar. 2, 2016) **New York State Division of Criminal Justice Services. Ages 16 and older. All arrests where marijuana possession was the only or highest charge. 1-Itt://marijuana-arrests.com/ May 2014. *** Victoria Bekiempis (June 12, 2015), Whites Account for 8% of NY Marijuana Arrests. Newsweek. Online Edition. **** Id.
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A02142 Text:

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    January 17, 2017
        Introduced  by  M. of A. PEOPLES-STOKES -- read once and referred to the
          Committee on Codes
        AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
          relation to sealing records for certain proceedings
          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.
     4    A person is guilty of unlawful possession of marihuana when  he  know-
     5  ingly and unlawfully possesses marihuana.
     6    Unlawful  possession  of marihuana is a violation punishable only by a
     7  fine of not more than one hundred dollars. However, where the  defendant
     8  has  previously  been  convicted of [an offense] a crime defined in this
     9  article, except a crime  defined  in  section  221.10  of  this  article
    10  provided,  however,  that  the record of such conviction does not demon-
    11  strate a conviction under subdivision two of  such  section  221.10,  or
    12  article 220 of this chapter, committed within the three years immediate-
    13  ly  preceding  such violation, it shall be punishable (a) only by a fine
    14  of not more than two hundred dollars, if the  defendant  was  previously
    15  convicted of one such offense committed during such period, and (b) by a
    16  fine  of  not more than two hundred fifty dollars or a term of imprison-
    17  ment not in excess of fifteen days or both, if the defendant was  previ-
    18  ously convicted of two such offenses committed during such period.
    19    §  2. Paragraph (k) of subdivision 3 of section 160.50 of the criminal
    20  procedure law, as added by chapter 835 of the laws of 1977 and as relet-
    21  tered by chapter 192 of the laws of 1980, is amended to read as follows:
    22    (k) (i) The accusatory instrument alleged a violation of  article  two
    23  hundred  twenty  or section 240.36 of the penal law, prior to the taking
    24  effect of article  two  hundred  twenty-one  of  the  penal  law,  or  a
    25  violation  of  article two hundred twenty-one of the penal law; (ii) the
    26  sole  controlled  substance  involved  is  marijuana;  and   (iii)   the
    27  conviction  was  only  for a violation or violations[; and (iv) at least
    28  three years have passed since the offense occurred] of section 221.10 of
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2142                             2
     1  the penal law provided, however, that the record of such conviction does
     2  not demonstrate a conviction  under  subdivision  two  of  such  section
     3  221.10,  or  for  a  petty  offense or offenses.   No defendant shall be
     4  required  or permitted to waive eligibility for sealing pursuant to this
     5  paragraph as part of a plea of guilty, sentence or any agreement related
     6  to a conviction for a violation of section 221.05 or section  221.10  of
     7  the  penal law and any such waiver shall be deemed void and wholly unen-
     8  forceable.
     9    § 3. Section 160.50 of the criminal procedure law is amended by adding
    10  three new subdivisions 5, 6 and 7 to read as follows:
    11    5. A person convicted of a violation of section 221.10  of  the  penal
    12  law,  other  than  a  conviction  after  trial of, or plea of guilty to,
    13  subdivision two of such section 221.10, prior to the effective  date  of
    14  this subdivision may upon motion apply to the court in which such termi-
    15  nation  occurred,  upon not less than twenty days notice to the district
    16  attorney, for an order granting to such person the relief set  forth  in
    17  subdivision  one of this section, and such order shall be granted unless
    18  the district attorney demonstrates that the interests of justice require
    19  otherwise.
    20    6. (a) Notwithstanding any other provision of law except  as  provided
    21  in paragraph (d) of subdivision one of this section and paragraph (e) of
    22  subdivision  four of section eight hundred thirty-seven of the executive
    23  law: (i) when the division  of  criminal  justice  services  conducts  a
    24  search  of its criminal history records, maintained pursuant to subdivi-
    25  sion six of section eight hundred thirty-seven of the executive law, and
    26  returns a report thereon, all references to a conviction for a violation
    27  of section 221.10 of the penal law, other than a conviction after  trial
    28  of,  or plea of guilty to, subdivision two of such section 221.10, shall
    29  be excluded from such report; and (ii) the chief  administrator  of  the
    30  courts  shall develop and promulgate rules as may be necessary to ensure
    31  that no written or electronic report of a criminal history record search
    32  conducted by the office of  court  administration  contains  information
    33  relating  to a conviction for a violation of section 221.10 of the penal
    34  law, other than a conviction after trial  of,  or  plea  of  guilty  to,
    35  subdivision  two of such section 221.10, unless such search is conducted
    36  solely for a bona fide research purpose, provided that such information,
    37  if so disseminated, shall be disseminated in accordance with  procedures
    38  established by the chief administrator of the courts to assure the secu-
    39  rity  and  privacy  of  identification and information data, which shall
    40  include the execution of an agreement which protects the confidentiality
    41  of the information and reasonably protects against data linkage to indi-
    42  viduals.
    43    (b) Nothing contained in this subdivision shall be deemed to permit or
    44  require the release, disclosure or other dissemination by  the  division
    45  of  criminal  justice  services or the office of court administration of
    46  criminal history record information that has been sealed  in  accordance
    47  with law.
    48    7.  A  person  convicted of a violation of section 221.05 of the penal
    49  law shall,  on  the  effective  date  of  this  subdivision,  have  such
    50  conviction  immediately  sealed  pursuant  to  subdivision  one  of this
    51  section if such conviction occurred less than three years prior to  such
    52  effective date.
    53    §  4.  This  act  shall take effect on the sixtieth day after it shall
    54  have become a law.
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