NY State Senate Bill 2017-S3809

Archive: Last Bill Status - In Senate Committee Judiciary 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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 15, 2018	reported and committed to judiciary
Mar 19, 2018	notice of committee consideration - requested
Jan 03, 2018	referred to codes
Jan 27, 2017	referred to codes

Votes

- May 15, 2018 - Codes Committee Vote
  S3809
  
  7
  
  Aye
  
  2
  
  Nay
  
  6
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: May 15, 2018
      
      aye (7)
      
      Bailey
      
      Hoylman-Sigal
      
      Kaminsky
      
      Krueger
      
      Peralta
      
      Savino
      
      Serrano
      
      nay (2)
      
      Gallivan
      
      O'Mara
      
      aye wr (6)
      
      Akshar
      
      Boyle
      
      Golden
      
      Griffo
      
      Lanza
      
      Tedisco
      
      excused (1)
      
      Croci

co-Sponsors

View additional co-sponsors

2017-S3809 (ACTIVE) - Details

See Assembly Version of this Bill:: A2142
Current Committee:: Senate Judiciary
Law Section:: Penal Law
Laws Affected:: Amd §221.05, Pen L; amd §160.50, CP L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S8047, A10092
2019-2020: A933

2017-S3809 (ACTIVE) - Summary

Relates to sealing records for certain proceedings that terminate in favor of the accused where the charges relate to the possession of marihuana.

2017-S3809 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3809

 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
marijuana 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.

According to the Drug Policy Alliance, in 2015, nearly 16,590 arrests
were made in New York City and nearly 20,992 statewide for possession
of marijuana, an average of 1,382 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, 50.36 percent of those
arrested for possession of marijuana in 2015 were African American,
and 37.76 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
decriminalize, but also to address the rampant disparity that exists
regarding the implementation and effect of these laws.

 PRIOR LEGISLATIVE HISTORY :

2015-16: S.8047/A.10092(Peoples-Stokes) - Referred to Rules

 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 2015.

2017-S3809 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3809
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 27, 2017
                                ___________
 
 Introduced  by Sens. BAILEY, HAMILTON -- read twice and ordered printed,
   and when printed to be committed 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:
 
   Section 1. 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.
   A person is guilty of unlawful possession of marihuana when  he  know-
 ingly and unlawfully possesses marihuana.
   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] A CRIME defined in this
 article, EXCEPT A CRIME  DEFINED  IN  SECTION  221.10  OF  THIS  ARTICLE
 PROVIDED,  HOWEVER,  THAT  THE RECORD OF SUCH CONVICTION DOES NOT DEMON-
 STRATE A CONVICTION UNDER SUBDIVISION TWO OF  SUCH  SECTION  221.10,  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.
   §  2. Paragraph (k) of subdivision 3 of section 160.50 of the criminal
 procedure law, as added by chapter 835 of the laws of 1977 and as relet-
 tered by chapter 192 of the laws of 1980, is amended to read as follows:
   (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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05532-01-7

 S. 3809                             2
 
 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] OF SECTION 221.10 OF
 THE PENAL LAW PROVIDED, HOWEVER, THAT THE RECORD OF SUCH CONVICTION DOES
 NOT  DEMONSTRATE  A  CONVICTION  UNDER  SUBDIVISION  TWO OF SUCH SECTION
 221.10, OR FOR A PETTY OFFENSE OR  OFFENSES.    NO  DEFENDANT  SHALL  BE
 REQUIRED  OR PERMITTED TO WAIVE ELIGIBILITY FOR SEALING PURSUANT TO THIS
 PARAGRAPH AS PART OF A PLEA OF GUILTY, SENTENCE OR ANY AGREEMENT RELATED
 TO A CONVICTION FOR A VIOLATION OF SECTION 221.05 OR SECTION  221.10  OF
 THE  PENAL LAW AND ANY SUCH WAIVER SHALL BE DEEMED VOID AND WHOLLY UNEN-
 FORCEABLE.
   § 3. Section 160.50 of the criminal procedure law is amended by adding
 three new subdivisions 5, 6 and 7 to read as follows:
   5. A PERSON CONVICTED OF A VIOLATION OF SECTION 221.10  OF  THE  PENAL
 LAW,  OTHER  THAN  A  CONVICTION  AFTER  TRIAL OF, OR PLEA OF GUILTY TO,
 SUBDIVISION TWO OF SUCH SECTION 221.10, PRIOR TO THE EFFECTIVE  DATE  OF
 THIS SUBDIVISION MAY UPON MOTION APPLY TO THE COURT IN WHICH SUCH TERMI-
 NATION  OCCURRED,  UPON NOT LESS THAN TWENTY DAYS NOTICE TO THE DISTRICT
 ATTORNEY, FOR AN ORDER GRANTING TO SUCH PERSON THE RELIEF SET  FORTH  IN
 SUBDIVISION  ONE OF THIS SECTION, AND SUCH ORDER SHALL BE GRANTED UNLESS
 THE DISTRICT ATTORNEY DEMONSTRATES THAT THE INTERESTS OF JUSTICE REQUIRE
 OTHERWISE.
   6. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW EXCEPT  AS  PROVIDED
 IN PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION AND PARAGRAPH (E) OF
 SUBDIVISION  FOUR OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THE EXECUTIVE
 LAW: (I) WHEN THE DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  CONDUCTS  A
 SEARCH  OF ITS CRIMINAL HISTORY RECORDS, MAINTAINED PURSUANT TO SUBDIVI-
 SION SIX OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW, AND
 RETURNS A REPORT THEREON, ALL REFERENCES TO A CONVICTION FOR A VIOLATION
 OF SECTION 221.10 OF THE PENAL LAW, OTHER THAN A CONVICTION AFTER  TRIAL
 OF,  OR PLEA OF GUILTY TO, SUBDIVISION TWO OF SUCH SECTION 221.10, SHALL
 BE EXCLUDED FROM SUCH REPORT; AND (II) THE CHIEF  ADMINISTRATOR  OF  THE
 COURTS  SHALL DEVELOP AND PROMULGATE RULES AS MAY BE NECESSARY TO ENSURE
 THAT NO WRITTEN OR ELECTRONIC REPORT OF A CRIMINAL HISTORY RECORD SEARCH
 CONDUCTED BY THE OFFICE OF  COURT  ADMINISTRATION  CONTAINS  INFORMATION
 RELATING  TO A CONVICTION FOR A VIOLATION OF SECTION 221.10 OF THE PENAL
 LAW, OTHER THAN A CONVICTION AFTER TRIAL  OF,  OR  PLEA  OF  GUILTY  TO,
 SUBDIVISION  TWO OF SUCH SECTION 221.10, UNLESS SUCH SEARCH IS CONDUCTED
 SOLELY FOR A BONA FIDE RESEARCH PURPOSE, PROVIDED THAT SUCH INFORMATION,
 IF SO DISSEMINATED, SHALL BE DISSEMINATED IN ACCORDANCE WITH  PROCEDURES
 ESTABLISHED BY THE CHIEF ADMINISTRATOR OF THE COURTS TO ASSURE THE SECU-
 RITY  AND  PRIVACY  OF  IDENTIFICATION AND INFORMATION DATA, WHICH SHALL
 INCLUDE THE EXECUTION OF AN AGREEMENT WHICH PROTECTS THE CONFIDENTIALITY
 OF THE INFORMATION AND REASONABLY PROTECTS AGAINST DATA LINKAGE TO INDI-
 VIDUALS.
   (B) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED TO PERMIT OR
 REQUIRE THE RELEASE, DISCLOSURE OR OTHER DISSEMINATION BY  THE  DIVISION
 OF  CRIMINAL  JUSTICE  SERVICES OR THE OFFICE OF COURT ADMINISTRATION OF
 CRIMINAL HISTORY RECORD INFORMATION THAT HAS BEEN SEALED  IN  ACCORDANCE
 WITH LAW.
   7.  A  PERSON  CONVICTED OF A VIOLATION OF SECTION 221.05 OF THE PENAL
 LAW SHALL,  ON  THE  EFFECTIVE  DATE  OF  THIS  SUBDIVISION,  HAVE  SUCH
 CONVICTION  IMMEDIATELY  SEALED  PURSUANT  TO  SUBDIVISION  ONE  OF THIS
 SECTION IF SUCH CONVICTION OCCURRED LESS THAN THREE YEARS PRIOR TO  SUCH
 EFFECTIVE DATE.

 S. 3809                             3
 
   §  4.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.

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Senate Bill S3809

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

May 15, 2018 - Codes Committee Vote

Codes Committee Vote: May 15, 2018

co-Sponsors

2017-S3809 (ACTIVE) - Details

2017-S3809 (ACTIVE) - Summary

2017-S3809 (ACTIVE) - Sponsor Memo

2017-S3809 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S3809

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Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

co-Sponsors

2017-S3809 (ACTIVE) - Details

2017-S3809 (ACTIVE) - Summary

2017-S3809 (ACTIVE) - Sponsor Memo

2017-S3809 (ACTIVE) - Bill Text download pdf

Comments