NY State Senate Bill 2017-S2736

Senate Bill S2736

2017-2018 Legislative Session

De-criminalizes the personal possession of marihuana; relates to certain pleas; specifies requirements with respect to bills affecting correctional populations

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 17, 2017	referred to codes

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2017-S2736 (ACTIVE) - Details

See other versions of this Bill:: S7013 ,; A667 ,
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§1.05, 221.05 & 221.10, Pen L; amd §§170.56, 440.10 & 160.50, CP L; add §52-a, Leg L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S7927
2015-2016: S137
2019-2020: S495

2017-S2736 (ACTIVE) - Summary

De-criminalizes the personal possession of marijuana; relates to certain pleas; specifies requirements with respect to bills affecting correctional populations.

2017-S2736 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2736

 TITLE OF BILL :  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; and to amend the
legislative law, in relation to specifying requirements with respect
to bills affecting the penal law

 PURPOSE :

The purpose of this bill is to make New York penal law fairer and more
equitable in the administration of marihuana enforcement, and avoid
the disparate racial and ethnic impact seen in current marihuana and
other enforcement.

 SUMMARY OF PROVISIONS :

Section 1 states that this act shall be known as the "Fairness and
Equity Act."

Section 2 amends subdivision 6 of section 1.05 of the penal law to
state that that the law should be enforced equally and fairly and not
result in a disparate impact on people because of their race or
ethnicity.

Section 3 amends section 221.05 of the penal law to add that a person

is only guilty of "unlawful possession of marihuana" when he knowingly
and unlawfully possesses marihuana and that marihuana is burning.
Section 3 also eliminates penalties escalating to jail time for the
violation of "unlawful possession of marihuana."

Section 4 amends subdivision 2 of section 221.10 of the penal law so
that the penalty for possession of small amounts of marihuana "open to
public view" is a violation, not a misdemeanor.

Section 5 amends subdivision 1 of section 170.56 of the criminal
procedure law to allow a court to order an adjournment in
contemplation of dismissal based upon a finding of exceptional
circumstances.

Section 6 and 7 amends section 440.10 of the criminal procedure law to
provide for the vacating of convictions that occurred before the
enactment of this bill.

Section 8 amends paragraph k of subdivision 3 of section 160.50 of the
criminal procedure law to eliminate the three-year wait requirement
for the sealing of marihuana-related records.

Section 9 adds a new section 52-a to the legislative law to create
guidelines for the implementation and use of racial and ethnic impact
statements to accompany certain legislation.

Section 10 establishes the effective date.

 JUSTIFICATION :

Since 1977, possession of small amounts of marijuana (25 grams or
less) has been "decriminalized" in New York State. It is a violation
punishable by a fine, not a misdemeanor that leads to arrest.

In decriminalizing marijuana, the intent was clear: "The legislature
finds that arrests, criminal prosecutions and criminal penalties are
inappropriate for people who possess small quantities of marihuana for
personal use. Every year, this process needlessly scars thousands of
lives and wastes millions of dollars in law enforcement resources,

while detracting from the prosecution of serious crime." (Chapter 360,
Laws of 1977)

But 35 years later, by 2012, more than 44,600 people in New York State
were arrested and charged for a misdemeanor crime for possessing small
amounts of marijuana for personal use, if it was said to be "in public
view" or "burning."

Of the 16,590 people arrested in New York City in 2015 for possessing
small amounts of marijuana, nearly 88 percent were black or Latino.
These severe disparities are alarming and indefensible when
considering that data from the Substance Abuse and Mental Health
Services Administration of the U.S. government consistently shows that
young white men are far more likely to possess and use marijuana than
non-whites.

In other words, in New York, possessing small amounts of marijuana is
largely decriminalized for people who are white, and vastly more
likely to be criminalized for people who are black or Latino.

The consequences of New York's inequitable decriminalization are
severe. Today, nearly 600,000 New Yorkers are saddled with an arrest
record for possessing small amounts of marijuana, the overwhelming
majority of whom are black or Latino. According to the National
Employment Law Project, these arrest records can follow a person for
the rest of one's life and impact the ability to access banking
services, schools, jobs, housing, certain licensing, and also have
immigration consequences. In addition, according to research by the
ACLU and Queens College sociologist Harry Levine, the costs associated
with these arrests total hundreds of millions of dollars to taxpayers
every year.

This bill addresses the disparate racial and ethnic impact that
existing law has had by more fairly decriminalizing possession of
small amounts of marijuana. It also creates a process for those who
have been arrested for possessing amounts of marijuana to have their
records stricken or sealed. And, the bill creates a process for the
legislature to avoid such a severe inequitable impact in the future
through racial and ethnic impact statements. These statements would
provide information to determine if certain proposed legislation would
disproportionately impact racial and ethnic minorities and if that
legislation, when enacted, causes a disparate impact.  Connecticut,
Iowa, and Oregon have already implemented racial and ethnic impact
statements, which are most analogous to New York's "fiscal notes."

 PRIOR LEGISLATIVE HISTORY :

2016: S137B/A6218 - REFERRED TO CODES/referred to codes
2015: S137A/A6218 - REFERRED TO CODES/referred to codes
2014: S7927/A10175- REFERRED TO RULES/referred to codes

 EFFECTIVE DATE :
This act shall take law.effect on the sixtieth day after it shall have
become a law.

2017-S2736 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2736
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2017
                                ___________
 
 Introduced  by  Sens.  SQUADRON,  HAMILTON, HOYLMAN, MONTGOMERY, PARKER,
   PERALTA, PERKINS, RIVERA, SERRANO -- read twice and  ordered  printed,
   and when printed to be committed 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; and to amend  the  legislative  law,  in
   relation  to  specifying  requirements with respect to bills affecting
   the penal law
 
   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".
   § 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 OR ETHNICI-
 TY; 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.
   § 3. Section 221.05 of the penal law, as added by chapter 360  of  the
 laws of 1977, is amended to read as follows:
 § 221.05 Unlawful possession of marihuana.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00486-01-7

 S. 2736                             2
 
   A  person  is guilty of unlawful possession of marihuana when he know-
 ingly and unlawfully possesses marihuana AND SUCH MARIHUANA IS BURNING.
   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.]
   § 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:
 § 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.
   § 5. 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,
 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. 2736                             3
 
   §  6. Paragraphs (h) and (i) of subdivision 1 of section 440.10 of the
 criminal procedure law, paragraph (h) as amended by chapter 332  of  the
 laws  of 2010 and paragraph (i) as amended by chapter 368 of the laws of
 2015, are amended and a new paragraph (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 person for prostitution or promoting pros-
 titution) or 230.00 (prostitution) or 230.03 (prostitution in  a  school
 zone) of the penal law, and the defendant's participation in the offense
 was  a  result  of having been a victim of sex trafficking under section
 230.34 of the penal law, labor trafficking under section 135.35  of  the
 penal  law,  aggravated  labor  trafficking  under section 135.37 of the
 penal law, compelling prostitution under section  230.33  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
 compelling prostitution crime or has sought services for victims of such
 trafficking or compelling  prostitution  crime,  subject  to  reasonable
 concerns  for the safety of the defendant, family members of the defend-
 ant, or other victims of such  trafficking  or  compelling  prostitution
 crime  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
 trafficking,  compelling  prostitution  or trafficking in persons at the
 time of the offense from a federal, state  or  local  government  agency
 shall  create  a  presumption  that the defendant's participation in the
 offense was a result of having been a victim of sex trafficking, compel-
 ling prostitution 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 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  INSTRUMENT THAT UNDERLIES THE JUDGMENT DOES NOT INCLUDE
 AN ALLEGATION THAT THE DEFENDANT POSSESSED MORE THAN  TWENTY-FIVE  GRAMS
 OF MARIHUANA.
   § 7. 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.
   § 8. Paragraphs (i), (j) and (k) of subdivision 3 of section 160.50 of
 the criminal procedure law, paragraphs (i) and (j) as added  by  chapter
 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,

 S. 2736                             4
 
 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].
   § 9. The legislative law is amended by adding a new  section  52-a  to
 read as follows:
   §  52-A.  REQUIREMENT  WITH  RESPECT  TO BILLS INCREASING CORRECTIONAL
 POPULATIONS.  1. WHENEVER A COMMITTEE REPORTS A BILL FAVORABLY WHICH, IF
 PASSED, WOULD INCREASE OR DECREASE THE PRETRIAL OR SENTENCED  POPULATION
 OF  CORRECTIONAL  FACILITIES  IN THIS STATE, A MAJORITY OF THE COMMITTEE
 MEMBERS VOTING MAY REQUEST THAT A RACIAL AND ETHNIC IMPACT STATEMENT  BE
 PREPARED. EACH HOUSE OF THE LEGISLATURE SHALL SEPARATELY PRESCRIBE RULES
 REQUIRING  RACIAL  AND ETHNIC IMPACT STATEMENTS TO ACCOMPANY, ON A SEPA-
 RATE 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 POPULATION
 AND AN EXPLANATION OF THAT IMPACT. ANY RACIAL AND ETHNIC  IMPACT  STATE-
 MENT  PRINTED  WITH  OR PREPARED FOR A BILL IS SOLELY FOR THE PURPOSE OF
 INFORMATION, SUMMARIZATION AND EXPLANATION FOR MEMBERS OF  THE  LEGISLA-
 TURE  AND SHALL NOT BE CONSTRUED TO REPRESENT THE INTENT OF THE LEGISLA-
 TURE 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."
   2. RACIAL AND ETHNIC IMPACT STATEMENTS SHALL BE MADE AVAILABLE TO  THE
 PUBLIC  IN  THE SAME MANNER THAT THE TEXT OF BILLS ARE MADE AVAILABLE TO
 THE PUBLIC.
   § 10. This act shall take effect on the sixtieth day  after  it  shall
 have become a law.

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