S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7109
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 22, 2021
                                ___________
 
 Introduced  by M. of A. MEEKS -- read once and referred to the Committee
   on Codes
 
 AN ACT to amend the penal law, the criminal procedure law and the gener-
   al  business  law,  in  relation  to  decriminalizing  possession   of
   controlled  substances; to amend the public health law, in relation to
   establishing the drug decriminalization task force; to repeal  certain
   provisions  of  the  penal  law related thereto; and providing for the
   repeal of certain provisions upon the expiration thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  findings.  The legislature hereby finds that
 substance use disorder is a disease  and  should  therefore  be  treated
 using  a  public  health,  rather  than a criminal-legal-system-centered
 approach.  Existing laws criminalizing the possession of drugs have been
 ineffective in reducing drug use and preventing substance use  disorder.
 Instead,  these laws have devastated individuals, families, and communi-
 ties.  Treating substance use as a crime by arresting and  incarcerating
 people  for personal use offenses causes significant harm to individuals
 who use drugs by disrupting and further destabilizing  their  lives.  It
 also contributes to an increased risk of death, the spread of infectious
 diseases,  mass  incarceration, the separation of families, and barriers
 to accessing housing, employment, and other vital services. Furthermore,
 even though research shows that drugs  are  used  and  sold  at  similar
 levels  across  all  races,  laws  criminalizing  the  use of drugs have
 disproportionately impacted Black and Latinx communities. The purpose of
 this legislation is to save lives  and  to  help  transform  New  York's
 approach to drug use from one based on criminalization and stigma to one
 based  on  science  and  compassion,  by  eliminating criminal and civil
 penalties for the personal possession of controlled substances.
   § 2. Section 220.03 of the penal law, as amended by section 4 of  part
 I of chapter 57 of the laws of 2015, is amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04043-01-1

 A. 7109                             2
 
 § 220.03 [Criminal]  UNLAWFUL  possession  of a controlled substance [in
            the seventh degree].
   A  person  is guilty of [criminal] UNLAWFUL possession of a controlled
 substance [in the seventh degree] when [he or she]  THEY  knowingly  and
 unlawfully  [possesses] POSSESS a controlled substance; provided, howev-
 er, that it shall not be a violation  of  this  section  when  a  person
 possesses  a residual amount of a controlled substance and that residual
 amount is in or on a hypodermic syringe or  hypodermic  needle  obtained
 and possessed pursuant to section thirty-three hundred eighty-one of the
 public health law, which includes the state's syringe exchange and phar-
 macy  and  medical  provider-based expanded syringe access programs; nor
 shall it be a  violation  of  this  section  when  a  person's  unlawful
 possession  of a controlled substance is discovered as a result of seek-
 ing immediate health care as defined in  paragraph  (b)  of  subdivision
 three  of  section  220.78  of  [the penal law] THIS ARTICLE, for either
 another person or [him or herself] THEMSELF because such person is expe-
 riencing a drug or alcohol overdose or other  life  threatening  medical
 emergency  as  defined  in paragraph (a) of subdivision three of section
 220.78 of [the penal law] THIS ARTICLE.
   [Criminal] UNLAWFUL possession  of  a  controlled  substance  [in  the
 seventh  degree]  is  a  [class A misdemeanor] VIOLATION PUNISHABLE BY A
 FINE OF UP TO FIFTY DOLLARS OR PARTICIPATION IN  A  NEEDS  SCREENING  TO
 IDENTIFY  HEALTH  AND  OTHER SERVICE NEEDS, INCLUDING BUT NOT LIMITED TO
 SERVICES THAT MAY ADDRESS  ANY  PROBLEMATIC  SUBSTANCE  USE  AND  MENTAL
 HEALTH  CONDITIONS,  LACK  OF EMPLOYMENT, HOUSING, OR FOOD, AND ANY NEED
 FOR CIVIL LEGAL SERVICES.  THE SCREENING SHOULD PRIORITIZE THE  INDIVID-
 UAL'S  SELF-IDENTIFIED  NEEDS FOR REFERRAL TO APPROPRIATE SERVICES. SUCH
 SCREENING SHALL BE CONDUCTED  BY  INDIVIDUALS  TRAINED  IN  THE  USE  OF
 EVIDENCE-BASED,  CULTURALLY  AND  GENDER COMPETENT TRAUMA-INFORMED PRAC-
 TICES. UPON VERIFICATION THAT THE PERSON  HAS  COMPLETED  THE  SCREENING
 WITHIN FORTY-FIVE DAYS OF WHEN THE FINE WAS IMPOSED, THE FINE IMPOSED BY
 THIS  SECTION SHALL BE WAIVED. FAILURE TO PAY SUCH FINE SHALL NOT BE THE
 BASIS FOR FURTHER PENALTIES OR FOR A TERM OF INCARCERATION.
   § 3. Subdivision 3 of section 160.50 of the criminal procedure law  is
 amended by adding a new paragraph (m) to read as follows:
   (M)  (I)  THE  CONVICTION WAS FOR A VIOLATION OF AN OFFENSE DEFINED IN
 SECTION 220.03 OF THE PENAL LAW PRIOR TO  THE  EFFECTIVE  DATE  OF  THIS
 PARAGRAPH.
   (II) THE CONVICTION IS FOR AN OFFENSE DEFINED IN SECTION 220.03 OF THE
 PENAL LAW.
   NO  DEFENDANT  SHALL BE REQUIRED OR PERMITTED TO WAIVE ELIGIBILITY FOR
 SEALING OR EXPUNGEMENT PURSUANT TO THIS SECTION AS PART  OF  A  PLEA  OF
 GUILTY,  SENTENCE  OR  ANY  AGREEMENT  RELATED  TO  A  CONVICTION  FOR A
 VIOLATION OF SECTION 220.03 OF THE PENAL LAW AND ANY SUCH  WAIVER  SHALL
 BE DEEMED VOID AND WHOLLY UNENFORCEABLE.
   §  4. Paragraph (a) of subdivision 5 of section 160.50 of the criminal
 procedure law, as amended by chapter 132 of the laws of 2019, is amended
 to read as follows:
   (a) Expungement of certain [marihuana-related] records.  A  conviction
 for  an  offense  described  in  SUBPARAGRAPH  (III) OF paragraph (k) OR
 SUBPARAGRAPH (II) OF PARAGRAPH (M) of subdivision three of this  section
 shall,  [on  and after the effective date of this paragraph,] in accord-
 ance with the provisions of this paragraph, be  vacated  and  dismissed,
 and  all  records  of such conviction or convictions and related to such
 conviction or convictions shall be expunged, as described in subdivision
 forty-five of section 1.20 of this chapter,  and  the  matter  shall  be

 A. 7109                             3
 
 considered  terminated  in  favor  of  the accused and deemed a nullity,
 having been rendered by this paragraph legally invalid. All such records
 for an offense described in this  paragraph  where  the  conviction  was
 entered  on  or  before the effective date of the chapter of the laws of
 2019 OR 2020, AS  APPLICABLE,  that  amended  this  paragraph  shall  be
 expunged  promptly  and, in any event, no later than one year after such
 effective date.
   § 5. Subparagraph (ii) of paragraph (b) of subdivision  5  of  section
 160.50  of  the  criminal  procedure law, as added by chapter 131 of the
 laws of 2019, is amended to read as follows:
   (ii) where automatic vacatur, dismissal,  and  expungement,  including
 record destruction if requested, is required by this subdivision but any
 record  of  the  court  system in this state has not yet been updated to
 reflect same (A) notwithstanding any other provision of  law  except  as
 provided  in  paragraph (d) of subdivision one of this section and para-
 graph (e) of subdivision four of section eight hundred  thirty-seven  of
 the  executive  law:  (1) when the division of criminal justice services
 conducts a search of its criminal history records,  maintained  pursuant
 to  subdivision  six of section eight hundred thirty-seven of the execu-
 tive law, and returns a report thereon, all references to  a  conviction
 for an offense described in paragraph (k) OR (M) of subdivision three of
 this  section  shall  be  excluded  from  such report; and (2) 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 an  offense  described
 in  paragraph  (k)  OR (M) of subdivision three of this section; and (B)
 where court records relevant to such matter cannot be  located  or  have
 been  destroyed,  and  a  person or the person's attorney presents to an
 appropriate court employee a fingerprint record of the  New  York  state
 division  of criminal justice services, or a copy of a court disposition
 record or other relevant court record, which indicates that  a  criminal
 action or proceeding against such person was terminated by conviction of
 an  offense  described  in  paragraph (k) OR (M) of subdivision three of
 this section, then promptly, and in any event within thirty  days  after
 such  notice  to  such  court  employee,  the chief administrator of the
 courts or [his or her] THEIR designee shall assure  that  such  vacatur,
 dismissal,  and  expungement, including record destruction if requested,
 have been completed in accordance with subparagraph (i)  of  this  para-
 graph.
   §  6. Paragraph (k) of subdivision 1 of section 440.10 of the criminal
 procedure law, as added by chapter 132 of the laws of 2019,  is  amended
 to read as follows:
   (k)  The  judgment [occurred prior to the effective date of this para-
 graph and] is a conviction for an offense as defined in subparagraph (i)
 or (ii) of paragraph (k) OR SUBPARAGRAPH (I) OF PARAGRAPH (M) of  subdi-
 vision  three  of  section  160.50 of this part, in which case the court
 shall presume that a conviction by plea for the aforementioned  offenses
 was not knowing, voluntary and intelligent if it has [severe or] ongoing
 COLLATERAL consequences, including but not limited to potential or actu-
 al  immigration  consequences,  and  shall  presume that a conviction by
 verdict for the aforementioned offenses constitutes  cruel  and  unusual
 punishment  under section five of article one of the state constitution,
 based on those consequences. The people may rebut these presumptions.

 A. 7109                             4
 
   § 7. Subdivision 6 of section 440.10 of the criminal procedure law, as
 amended by chapter 131 of the laws  of  2019,  is  amended  to  read  as
 follows:
   6.  If  the court grants a motion under paragraph (i) or paragraph (k)
 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.  A  DEFENDANT  SHALL  NOT  BE
 REQUIRED TO DEMONSTRATE PREJUDICE PRIOR TO VACATING THE JUDGMENT.
   § 8. Subdivision 9 of section 440.10 of the criminal procedure law, as
 added  by  section  4  of  part OO of chapter 55 of the laws of 2019, is
 amended to read as follows:
   9. Upon [granting of] CONSIDERING a motion pursuant to  paragraph  (j)
 of subdivision one of this section, A DEFENDANT SHALL NOT BE REQUIRED TO
 DEMONSTRATE PREJUDICE. UPON GRANTING THE MOTION, the court may either:
   (a) With the consent of the people, vacate [the judgment or] AND modi-
 fy  the judgment [by reducing it] to [one of conviction for a lesser] AN
 ALTERNATE offense; or
   (b) Vacate the judgment and order a new trial  wherein  the  defendant
 enters a plea to the same offense in order to permit the court to resen-
 tence  the  defendant  in  accordance  with the amendatory provisions of
 subdivision one-a of section 70.15 of the penal law.
   § 9. Section 220.46 of the penal law is REPEALED.
   § 10. Section 220.25 of the penal law is REPEALED.
   § 11. Subdivision 2 of section 850 of the  general  business  law,  as
 amended  by  chapter  812  of  the  laws  of 1980, is amended to read as
 follows:
   2. (A) "Drug-related paraphernalia" consists of the following  objects
 used for the following purposes:
   [(a)]  (I)  Kits, used or designed for the purpose of planting, propa-
 gating, cultivating, growing or harvesting of any species of plant which
 is a controlled substance or from which a controlled  substance  can  be
 derived;
   [(b)]  (II)  Kits,  used or designed for the purpose of manufacturing,
 compounding, converting, producing, or preparing controlled substances;
   [(c)] (III) Isomerization devices, used or designed for the purpose of
 increasing the potency of any species of plant  which  is  a  controlled
 substance;
   [(d)]  (IV)  Scales  and balances, used or designed for the purpose of
 weighing or measuring controlled substances; and
   [(e)] (V) Diluents and  adulterants,  including  but  not  limited  to
 quinine  hydrochloride, mannitol, mannite, dextrose and lactose, used or
 designed for the purpose of cutting controlled substances; AND
   [(f)] (VI) Separation gins, used or designed for the purpose of remov-
 ing twigs and seeds in order to clean or refine marihuana[;
   (g) Hypodermic syringes, needles and other objects, used  or  designed
 for the purpose of parenterally injecting controlled substances into the
 human body;
   (h)  Objects, used or designed for the purpose of ingesting, inhaling,
 or otherwise introducing marihuana, cocaine,  hashish,  or  hashish  oil
 into the human body].
   (B)  "DRUG-RELATED  PARAPHERNALIA"  SHALL NOT INCLUDE OBJECTS USED FOR
 THE PURPOSE OF INJECTING, INGESTING, INHALING OR  OTHERWISE  INTRODUCING
 DRUGS INTO THE HUMAN BODY.
   §  12. A person under parole, probation or other state or local super-
 vision, or released on bail awaiting trial as of the effective  date  of
 this  act  shall not be punished or otherwise penalized for conduct that

 A. 7109                             5

 is no longer considered criminal under article  220  of  the  penal  law
 pursuant to the provisions of this act.
   § 13. The public health law is amended by adding a new section 3395 to
 read as follows:
   §  3395.  DRUG DECRIMINALIZATION TASK FORCE. 1. THERE IS HEREBY ESTAB-
 LISHED A DRUG  DECRIMINALIZATION  TASK  FORCE  WHICH,  PURSUANT  TO  THE
 PROVISIONS  OF THIS SECTION, SHALL DEVELOP RECOMMENDATIONS FOR REFORMING
 STATE LAWS, REGULATIONS AND PRACTICES SO THAT THEY ALIGN WITH THE STATED
 GOAL OF TREATING SUBSTANCE USE DISORDER AS  A  DISEASE,  RATHER  THAN  A
 CRIMINAL BEHAVIOR.
   2. THE TASK FORCE SHALL STUDY AND UTILIZE RELIABLE EVIDENCE AND INFOR-
 MATION TO:
   (A)  IDENTIFY  AMOUNTS  OF INDIVIDUAL CONTROLLED SUBSTANCES CONSISTENT
 WITH NON-PRESCRIBED PERSONAL USE;
   (B) IDENTIFY QUALITATIVE AND  QUANTITATIVE  RESEARCH  DATA  ABOUT  THE
 TYPES  OF  SERVICES  THAT  PEOPLE  WITH  SUBSTANCE USE DISORDERS WHO ARE
 INVOLVED WITH THE CRIMINAL LEGAL OR CHILD  WELFARE  SYSTEMS  DESIRE  AND
 CURRENTLY  CANNOT  ACCESS,  AND BARRIERS TO ACCESSING EXISTING SERVICES;
 AND
   (C) ISSUE RECOMMENDATIONS REGARDING  LAWS,  REGULATIONS  AND  POLICIES
 IDENTIFIED BY THE TASK FORCE AS NEEDING REFORM, INCLUDING CHANGES TO THE
 PENAL LAW, THE SOCIAL SERVICES LAW AND ANY OTHER STATUTES THAT WILL HELP
 THE STATE ACHIEVE THE OBJECTIVE OF ADDRESSING THE USE OF DRUGS THROUGH A
 PUBLIC  HEALTH  APPROACH.  IN DEVELOPING RECOMMENDATIONS, THE TASK FORCE
 SHALL CONSIDER:
   (I) THE QUANTITY OF DRUGS USED BY INDIVIDUALS  WITH  A  SUBSTANCE  USE
 DISORDER;
   (II)  POLICIES  AND PRACTICES THAT WILL PRIORITIZE ACCESS TO TREATMENT
 AND RECOVERY FOR INDIVIDUALS WISHING TO ADDRESS THEIR USE OF  CONTROLLED
 SUBSTANCES;
   (III) NON-CARCERAL STRATEGIES TO DIVERT INDIVIDUALS WHO USE DRUGS FROM
 THE CRIMINAL LEGAL SYSTEM, INCLUDING CHARGES FOR SELLING DRUGS;
   (IV) THE CRIMINALIZATION OF POSSESSION OF METHADONE AND BUPRENORPHINE;
   (V)  THE IMMIGRATION CONSEQUENCES OF CONVICTIONS FOR CRIMES RELATED TO
 DRUG USE;
   (VI) HOW TO REDUCE UNNECESSARY FAMILY SEPARATION;
   (VII) HOW TO REDUCE CIVIL COLLATERAL CONSEQUENCES OF DRUG  CONVICTIONS
 INCLUDING EFFECTS ON EMPLOYMENT, HOUSING, EDUCATION, AND LICENSING;
   (VIII) HOW TO MAXIMIZE THE USE OF HARM REDUCTION STRATEGIES; AND
   (IX) HOW TO ADDRESS RACIAL DISPARITIES IN ENFORCEMENT.
   3.  (A)  (I) SUCH TASK FORCE SHALL BE COMPRISED OF THE COMMISSIONER OF
 HEALTH OR THEIR DESIGNEE; THE COMMISSIONER  OF  ADDICTION  SERVICES  AND
 SUPPORTS  OR  THEIR DESIGNEE; THE COMMISSIONER OF MENTAL HEALTH OR THEIR
 DESIGNEE; THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE  SERVICES
 OR THEIR DESIGNEE; THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY
 SERVICES OR THEIR DESIGNEE; THE DIRECTOR OF THE OFFICE OF INDIGENT LEGAL
 SERVICES  OR  THEIR DESIGNEE; ONE PUBLIC DEFENDER RECOMMENDED BY THE NEW
 YORK STATE DEFENDERS ASSOCIATION;  ONE  PROSECUTOR  RECOMMENDED  BY  THE
 DISTRICT  ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK; TWO EXPERTS IN
 THE ETIOLOGY AND TREATMENT OF SUBSTANCE USE DISORDERS RECOMMENDED BY THE
 NEW YORK ACADEMY OF MEDICINE, AT LEAST ONE OF WHOM MUST BE AN EXPERT  IN
 MEDICATION-ASSISTED TREATMENT AND AT LEAST ONE OF WHOM MUST BE AN EXPERT
 IN  THE  COMORBIDITY  OF SUBSTANCE USE DISORDERS WITH MENTAL HEALTH; AND
 ELEVEN MEMBERS TO BE APPOINTED AS FOLLOWS: (A) THREE  MEMBERS  SHALL  BE
 APPOINTED  BY  THE GOVERNOR; (B) THREE MEMBERS SHALL BE APPOINTED BY THE
 TEMPORARY PRESIDENT OF THE SENATE; (C) ONE MEMBER SHALL BE APPOINTED  BY

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 THE  MINORITY LEADER OF THE SENATE; (D) THREE MEMBERS SHALL BE APPOINTED
 BY THE SPEAKER OF THE ASSEMBLY; AND (E) ONE MEMBER SHALL BE APPOINTED BY
 THE MINORITY LEADER OF THE ASSEMBLY.
   (II)  IF  APPOINTMENTS  ARE  NOT  MADE  WITHIN THIRTY DAYS, THE SENATE
 MAJORITY LEADER AND SPEAKER OF THE ASSEMBLY SHALL APPOINT THE  REMAINING
 MEMBERS.
   (III)  ALL  APPOINTEES  SHALL  HAVE  EXPERTISE  IN AT LEAST ONE OF THE
 FOLLOWING FIELDS: PUBLIC HEALTH, SUBSTANCE USE DISORDERS, MENTAL HEALTH,
 DRUG USER HEALTH AND HARM REDUCTION, THE CRIMINAL  LEGAL  SYSTEM,  CHILD
 WELFARE, IMMIGRATION, DRUG POLICY OR RACIAL JUSTICE. FURTHER, APPOINTEES
 SHALL  INCLUDE  PEOPLE WITH PRIOR DRUG CONVICTIONS, INDIVIDUALS WHO HAVE
 PARTICIPATED IN A DRUG COURT PROGRAM, INDIVIDUALS WHO HAVE BEEN FORMERLY
 INCARCERATED, INDIVIDUALS IMPACTED BY  THE  CHILD  WELFARE  SYSTEM,  AND
 REPRESENTATIVES  OF  ORGANIZATIONS  SERVING COMMUNITIES IMPACTED BY PAST
 FEDERAL AND STATE DRUG POLICIES. ALL APPOINTMENTS SHALL  BE  COORDINATED
 TO  ENSURE  STATEWIDE  GEOGRAPHIC  REPRESENTATION  THAT  IS BALANCED AND
 DIVERSE IN ITS COMPOSITION.
   (IV) THE TASK FORCE SHALL BE CHAIRED BY THE COMMISSIONER OF HEALTH  OR
 SELECTED  BY THE COMMISSIONER FROM THE APPOINTED MEMBERS. THE TASK FORCE
 SHALL ELECT A VICE-CHAIR AND OTHER NECESSARY  OFFICERS  FROM  AMONG  ALL
 APPOINTED MEMBERS.
   (B)  THE  MEMBERS  OF THE TASK FORCE SHALL RECEIVE NO COMPENSATION FOR
 THEIR SERVICES BUT SHALL BE REIMBURSED FOR EXPENSES ACTUALLY AND  NECES-
 SARILY INCURRED IN THE PERFORMANCE OF THEIR DUTIES;
   (C)  NO  CIVIL ACTION SHALL BE BROUGHT IN ANY COURT AGAINST ANY MEMBER
 OF THE DRUG DECRIMINALIZATION TASK FORCE FOR ANY ACT OR OMISSION  NECES-
 SARY  TO  THE  DISCHARGE  OF THEIR DUTIES AS A MEMBER OF THE TASK FORCE,
 EXCEPT AS PROVIDED HEREIN. SUCH MEMBER MAY BE LIABLE FOR DAMAGES IN  ANY
 SUCH  ACTION IF THEY FAILED TO ACT IN GOOD FAITH AND EXERCISE REASONABLE
 CARE. ANY INFORMATION OBTAINED BY A  MEMBER  OF  THE  TASK  FORCE  WHILE
 CARRYING  OUT  THEIR  DUTIES  AS  PRESCRIBED  IN SUBDIVISION TWO OF THIS
 SECTION SHALL ONLY BE UTILIZED IN THEIR CAPACITY AS A MEMBER OF THE TASK
 FORCE.
   4. NO LATER THAN ONE YEAR AFTER THE EFFECTIVE DATE  OF  THIS  SECTION,
 THE  TASK  FORCE  SHALL  PROVIDE  A REPORT CONTAINING THE RESULTS OF THE
 STUDY, INCLUDING EVIDENCE USED AS A BASIS IN MAKING SUCH REPORT, AND ITS
 RECOMMENDATIONS, IF ANY, TOGETHER WITH DRAFTS OF  LEGISLATION  NECESSARY
 TO  CARRY  OUT ITS RECOMMENDATIONS BY FILING SAID REPORT, DOCUMENTATION,
 AND DRAFT LEGISLATION, WITH 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. THE TASK FORCE SHALL ALSO MAKE
 THE REPORT, DOCUMENTATION, AND DRAFT LEGISLATION AVAILABLE TO THE PUBLIC
 BY POSTING A COPY ON THE WEBSITE MAINTAINED BY THE OFFICE.
   § 14. This act shall take effect on the one hundred and eightieth  day
 after  it shall have become a law; provided, however, that section thir-
 teen shall expire and be deemed repealed two years after such  effective
 date.