S T A T E   O F   N E W   Y O R K
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                                  10175

                          I N  A S S E M B L Y

                             August 20, 2014
                               ___________

Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Camara) --
  read once and referred to the Committee on Codes

AN ACT to amend the penal  law,  in  relation  to  de-criminalizing  the
  personal possession of marihuana; to amend the criminal procedure law,
  in  relation  to  certain  pleas;  to  amend  the  legislative law, in
  relation to specifying requirements with respect  to  bills  affecting
  the  penal  law;  to amend the executive law, in relation to expanding
  the duties of division of criminal justice  services;  and  to  repeal
  section 221.35 of the penal law relating to criminal sale of marihuana
  in the fifth degree

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. This act shall be known and may be cited as  the  "fairness
and equity act".
  S  2.  Subdivisions 5 and 6 of section 1.05 of the penal law, subdivi-
sion 5 as amended by chapter 612 of the laws of 1982 and  subdivision  6
as  amended  by  chapter  98 of the laws of 2006, are amended to read as
follows:
  5. To  provide  for  an  appropriate  public  response  to  particular
offenses, including consideration of the consequences of the offense for
the victim, including the victim's family, and the community; [and]
  6.  TO  ENSURE  THAT  LAWS  ARE ENFORCED EQUALLY AND FAIRLY AND DO NOT
RESULT IN A DISPARATE IMPACT ON PEOPLE BECAUSE OF THEIR RACE AND ETHNIC-
ITY; AND
  7. To insure  the  public  safety  by  preventing  the  commission  of
offenses  through  the  deterrent influence of the sentences authorized,
the rehabilitation of those convicted, the promotion of their successful
and  productive  reentry  and  reintegration  into  society,  and  their
confinement when required in the interests of public protection.
  S  3.  Section 221.05 of the penal law, as added by chapter 360 of the
laws of 1977, is amended to read as follows:
S 221.05 Unlawful possession of marihuana.
  A person is guilty of unlawful possession of marihuana when  he  know-
ingly and unlawfully possesses marihuana.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15556-03-4

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  Unlawful  possession  of marihuana is a violation punishable only by a
fine of not more than one hundred dollars. [However, where the defendant
has previously been convicted of an offense defined in this  article  or
article 220 of this chapter, committed within the three years immediate-
ly  preceding  such violation, it shall be punishable (a) only by a fine
of not more than two hundred dollars, if the  defendant  was  previously
convicted of one such offense committed during such period, and (b) by a
fine  of  not more than two hundred fifty dollars or a term of imprison-
ment not in excess of fifteen days or both, if the defendant was  previ-
ously convicted of two such offenses committed during such period.]
  S 4. Section 221.10 of the penal law, as amended by chapter 265 of the
laws  of  1979,  subdivision  2  as amended by chapter 75 of the laws of
1995, is amended to read as follows:
S 221.10 Criminal possession of marihuana in the fifth degree.
  A person is guilty of criminal possession of marihuana  in  the  fifth
degree when he knowingly and unlawfully possesses[:
  1.  marihuana  in a public place, as defined in section 240.00 of this
chapter, and such marihuana is burning or open to public view; or
  2.] one  or  more  preparations,  compounds,  mixtures  or  substances
containing  marihuana  and  the  preparations,  compounds,  mixtures  or
substances are of an aggregate weight of more than twenty-five grams.
  Criminal possession of marihuana in the fifth  degree  is  a  class  B
misdemeanor.
  S 5. Section 221.35 of the penal law is REPEALED.
  S  6.  Section 221.40 of the penal law, as added by chapter 360 of the
laws of 1977, is amended to read as follows:
S 221.40 Criminal sale of marihuana in the fourth degree.
  A person is guilty of criminal sale of marihuana in the fourth  degree
when  he knowingly and unlawfully sells marihuana [except as provided in
section 221.35 of this article] FOR CONSIDERATION.
  Criminal sale of marihuana in the fourth degree is a class A misdemea-
nor.
  S 7. Subdivision 1 of section 170.56 of the criminal procedure law, as
amended by chapter 360 of the laws  of  1977,  is  amended  to  read  as
follows:
  1.  Upon or after arraignment in a local criminal court upon an infor-
mation, a prosecutor's information or a misdemeanor complaint, where the
sole  remaining  count  or  counts  charge  a violation or violations of
section 221.05, 221.10, 221.15[, 221.35] or 221.40 of the penal law  and
before the entry of a plea of guilty thereto or commencement of  a trial
thereof,  the  court,  upon  motion  of  a defendant, may order that all
proceedings be suspended and the action adjourned  in  contemplation  of
dismissal,  or upon a finding that adjournment would not be necessary or
appropriate and the setting forth in the record of the reasons for  such
findings,  may  dismiss in furtherance of justice the accusatory instru-
ment; provided, however, that the court may not order  such  adjournment
in  contemplation  of dismissal or dismiss the accusatory instrument if:
(a) the defendant  has  previously  been  granted  such  adjournment  in
contemplation  of  dismissal,  or  (b) the defendant has previously been
granted a dismissal under this section, or (c) the defendant has  previ-
ously  been convicted of any offense involving controlled substances, or
(d) the defendant has previously been  convicted  of  a  crime  and  the
district  attorney  does not consent or (e) the defendant has previously
been adjudicated a youthful offender on the basis of  any  act  or  acts
involving  controlled  substances  and  the  district  attorney does not
consent. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN THIS  SUBDIVISION,

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THE  COURT  MAY  ORDER  THAT ALL PROCEEDINGS BE SUSPENDED AND THE ACTION
ADJOURNED IN CONTEMPLATION OF DISMISSAL BASED UPON A FINDING  OF  EXCEP-
TIONAL  CIRCUMSTANCES.  FOR  PURPOSES  OF  THIS SUBDIVISION, EXCEPTIONAL
CIRCUMSTANCES  EXIST WHEN, REGARDLESS OF THE ULTIMATE DISPOSITION OF THE
CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKELY TO RESULT IN SEVERE COLLA-
TERAL CONSEQUENCES, INCLUDING, BUT NOT  LIMITED  TO,  THOSE  THAT  COULD
LEAVE A NONCITIZEN INADMISSIBLE OR DEPORTABLE FROM THE UNITED STATES.
  S 8. Section 210.46 of the criminal procedure law, as amended by chap-
ter 360 of the laws of 1977, is amended to read as follows:
S  210.46   Adjournment in contemplation of dismissal in marihuana cases
        in a superior court.
  Upon or after arraignment in a superior court upon an indictment where
the sole remaining count or counts charge a violation or  violations  of
section 221.05, 221.10, 221.15[, 221.35] or 221.40 of the penal law  and
before  the entry of a plea of guilty thereto or commencement of a trial
thereof, the court, upon motion of  a  defendant,  may  order  that  all
proceedings  be  suspended  and the action adjourned in contemplation of
dismissal or may dismiss the indictment in furtherance  of  justice,  in
accordance with the provisions of section 170.56 of this chapter.
  S  9. Paragraphs (h) and (i) of subdivision 1 of section 440.10 of the
criminal procedure law, paragraph (h) as amended and  paragraph  (i)  as
added  by  chapter  332 of the laws of 2010, are amended and a new para-
graph (j) is added to read as follows:
  (h) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States; [or]
  (i) The judgment is a conviction where the arresting charge was  under
section  240.37 (loitering for the purpose of engaging in a prostitution
offense, provided that the defendant was not alleged to be loitering for
the purpose of patronizing a prostitute or  promoting  prostitution)  or
230.00  (prostitution)  of  the  penal  law, and the defendant's partic-
ipation in the offense was a result of having been a victim of sex traf-
ficking under section 230.34 of the penal law or trafficking in  persons
under  the Trafficking Victims Protection Act (United States Code, title
22, chapter 78); provided that
  (i) a motion under this paragraph shall be made  with  due  diligence,
after the defendant has ceased to be a victim of such trafficking or has
sought  services  for victims of such trafficking, subject to reasonable
concerns for the safety of the defendant, family members of the  defend-
ant, or other victims of such trafficking that may be jeopardized by the
bringing  of  such  motion,  or  for  other  reasons consistent with the
purpose of this paragraph; and
  (ii) official documentation of the defendant's status as a  victim  of
sex  trafficking  or  trafficking  in persons at the time of the offense
from a federal, state or local government agency shall create a presump-
tion that the defendant's participation in the offense was a  result  of
having  been  a victim of sex trafficking or trafficking in persons, but
shall not be required for granting a motion under this paragraph[.]; OR
  (J) THE JUDGMENT OCCURRED PRIOR TO THE EFFECTIVE DATE  OF  THIS  PARA-
GRAPH AND IS A CONVICTION FOR:
  (I) AN OFFENSE AS DEFINED BY SECTION 221.10 OF THE PENAL LAW (CRIMINAL
POSSESSION  OF MARIHUANA IN THE FIFTH DEGREE), AS IN EFFECT PRIOR TO THE
EFFECTIVE DATE OF THIS PARAGRAPH, PROVIDED THAT THE  ACCUSATORY  INSTRU-
MENT THAT UNDERLIES THE JUDGMENT DOES NOT INCLUDE AN ALLEGATION THAT THE
DEFENDANT POSSESSED MORE THAN TWENTY-FIVE GRAMS OF MARIHUANA; OR
  (II)  AN  OFFENSE AS DEFINED BY FORMER SECTION 221.35 OF THE PENAL LAW
(CRIMINAL SALE OF MARIHUANA IN THE FIFTH DEGREE).

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  S 10. Subdivision 6 of section 440.10 of the criminal  procedure  law,
as  added  by  chapter  332  of  the laws of 2010, is amended to read as
follows:
  6.  If  the court grants a motion under paragraph (i) OR PARAGRAPH (J)
of subdivision one of this section, it  must  vacate  the  judgment  and
dismiss  the  accusatory instrument, and may take such additional action
as is appropriate in the circumstances.
  S 11. Paragraphs (i), (j) and (k) of subdivision 3 of  section  160.50
of  the criminal procedure law, paragraphs (i) and (j) as added by chap-
ter 905 of the laws of 1977 and paragraph (k) as added by chapter 835 of
the laws of 1977 and as relettered by chapter 192 of the laws  of  1980,
are amended to read as follows:
  (i)  prior to the filing of an accusatory instrument in a local crimi-
nal court against such person, the prosecutor elects  not  to  prosecute
such  person.  In such event, the prosecutor shall serve a certification
of such disposition upon the division of criminal justice  services  and
upon  the appropriate police department or law enforcement agency which,
upon receipt thereof, shall comply with  the  provisions  of  paragraphs
(a),  (b),  (c)  and  (d) of subdivision one of this section in the same
manner as is required thereunder with respect to an  order  of  a  court
entered pursuant to said subdivision one[.]; OR
  (j)  following the arrest of such person, the arresting police agency,
prior to the filing of an accusatory  instrument  in  a  local  criminal
court  but subsequent to the forwarding of a copy of the fingerprints of
such person to the division of criminal justice services, elects not  to
proceed  further. In such event, the head of the arresting police agency
shall serve a certification of such disposition  upon  the  division  of
criminal justice services which, upon receipt thereof, shall comply with
the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of
this  section  in the same manner as is required thereunder with respect
to an order of a court entered pursuant to said subdivision one[.]; OR
  (k) (i) The accusatory instrument alleged a violation of  article  two
hundred  twenty  or section 240.36 of the penal law, prior to the taking
effect of article  two  hundred  twenty-one  of  the  penal  law,  or  a
violation  of  article two hundred twenty-one of the penal law; (ii) the
sole  controlled  substance  involved  is  marijuana;  AND   (iii)   the
conviction  was  only  for a violation or violations[; and (iv) at least
three years have passed since the offense occurred].
  S 12. The legislative law is amended by adding a new section  52-a  to
read as follows:
  S  52-A.  REQUIREMENT  WITH  RESPECT TO BILLS AFFECTING THE PENAL LAW.
WHENEVER A COMMITTEE REPORTS A BILL FAVORABLY WHICH,  IF  PASSED,  WOULD
INCREASE OR DECREASE THE PRETRIAL OR SENTENCED POPULATION OF CORRECTION-
AL  FACILITIES IN THIS STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING
MAY REQUEST THAT A RACIAL AND ETHNIC IMPACT STATEMENT BE  PREPARED.  THE
LEGISLATURE  SHALL  BY  CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
PRESCRIBE RULES REQUIRING RACIAL AND ETHNIC IMPACT STATEMENTS TO  ACCOM-
PANY, ON A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS
HAVE  BEEN  REPORTED FROM COMMITTEE. RACIAL AND ETHNIC IMPACT STATEMENTS
SHALL BE PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL PASSAGE.   THE
STATEMENT  SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT
ON THE RACIAL AND ETHNIC COMPOSITION OF THE CORRECTIONAL FACILITY  POPU-
LATION  AND  AN EXPLANATION OF THAT IMPACT. ANY RACIAL AND ETHNIC IMPACT
STATEMENT PRINTED WITH OR PREPARED FOR A BILL IS SOLELY FOR THE  PURPOSE
OF  INFORMATION, SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGIS-
LATURE AND SHALL NOT BE CONSTRUED TO REPRESENT THE INTENT OF THE  LEGIS-

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LATURE OR EITHER CHAMBER THEREOF FOR ANY PURPOSE. EACH RACIAL AND ETHNIC
IMPACT  STATEMENT  SHALL  BEAR  THE FOLLOWING DISCLAIMER: "THE FOLLOWING
RACIAL AND ETHNIC IMPACT STATEMENT IS PREPARED FOR THE  BENEFIT  OF  THE
MEMBERS  OF  THE LEGISLATURE, SOLELY FOR PURPOSES OF INFORMATION, SUMMA-
RIZATION AND EXPLANATION AND DOES NOT REPRESENT THE INTENT OF THE LEGIS-
LATURE OR EITHER CHAMBER THEREOF FOR ANY PURPOSE."
  S 13. Paragraph (f) of subdivision 4 of section 837 of  the  executive
law, as amended by chapter 169 of the laws of 1994, is amended and a new
paragraph (g) is added to read as follows:
  (f)  [Accomplish]  ACCOMPLISH all of the functions, powers, and duties
set forth in paragraphs (a), (b), (c) and (d) of this  subdivision  with
respect  to  the  processing  and disposition of cases involving violent
felony offenses specified in subdivision one of  section  70.02  of  the
penal law[.]; AND
  (G)  ACCOMPLISH  ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET FORTH IN
PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL
CHAPTERS OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN  SUBJECT
TO  THE  PROVISIONS  OF  SECTION FIFTY-TWO-A OF THE LEGISLATIVE LAW. THE
DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPORARY PRESIDENT  OF  THE
SENATE,  THE  MINORITY LEADER OF THE SENATE, THE SPEAKER OF THE ASSEMBLY
AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNUAL REPORT CONTAINING  THE
STATISTICS AND OTHER INFORMATION RELEVANT TO THIS SUBDIVISION.
  S  14.  This  act  shall  take effect on the one hundred eightieth day
after it shall have become a law.