BILL NUMBER: S7505

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to making tech-
nical corrections regarding the unlawful possession and sale of cannabis

 
PURPOSE: OR GENERAL IDEA:

To correct drafting errors to the MRTA.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill makes a technical change to section 440.46-a of
the criminal procedure law. Section two of the bill sets forth the
effective date.

 
JUSTIFICATION:

Having a criminal record can prevent individuals from accessing jobs,
              

licensing, housing and educational opportunities long after they have
completed their sentence. Getting that record sealed, vacated or
expunged can help to lift some of those barriers so that individuals can
fully participate in their community and support themselves and their
families without having to resort to activities that could cause them to
get into trouble with the law once again. When the Marihuana Regulation
and Taxation Act (MRTA) became law on March 31, 2021, one of the
missions of the new Cannabis Law was to lower social barriers for indi-
viduals who had come into contact with the criminal justice system over
their involvement in the world of cannabis during the prohibition Era.
Post-Conviction Vacatur found in the NYS Criminal Procedure Law (CPL)
offers some relief.

Cannabis Vacatur or Resentencing, found under CPL 440.46-a, is a
provision that came into existence when the MRTA was signed. It allows
for individuals to apply to vacate their conviction or reduce their
sentence if they were convicted of the old, and now repealed, Penal Law
crimes for cannabis: PL 221.25 PL 221.30 PL 221.45 PL 221.50 PL 221.55
if under 100 lbs. Some people may have other options to apply to vacate
their conviction under CPL 440. These options are usually used if there
are immigration concerns for an individual.

While it is widely acknowledged that the MRTA was a standard-bearer in
the Cannabis world in terms of the progressive nature and focus on
social and economic equity, lowering barriers to entry into the market,
and aiding those convicted of cannabis crimes in before March 31, 2021,
there are a number of necessary technical fixes that could be made to
the MRTA which would clean up drafting errors that create confusion and
unintended consequences. Making a small correction to CPL 440.46-a is a
critical one to correct right now. It would create an immediate and
positive impact on the lives of many New Yorkers who were disproportion-
ately swept up in the War on Drugs, and who are now having issues clear-
ing up those records as the MRTA intended. The way that the typographi-
cal error in the current law reads, even sympathetic judges who
understand the context of the vacatur motions and the intent of the MRTA
feel that their hands are tied in these vacatur matters. So they, along
with cannabis attorneys and Legal Aid advocates, have suggested that a
legislative change is necessary to correct the issue. Many clients of
these attorneys have encountered difficulties in court because judges
have determined that the typo originally enacted in the MRTA as limiting
their relief.

The Bronx Defenders, private attorneys, legal scholars and others have
made the argument that a proposal should amend subparagraph (ii) of
paragraph b of subdivision 2 of section 440.46-a of the Criminal Proce-
dure Law to make a technical change related to resentencing of former
marihuana offenses not subject to automatic vacatur, and it was proposed
that this section be effective retroactively to March 31, 2021. There-
fore, with this change, § 440.46-a(2)(b)(ii) will now reference
(2)(a)(ii) because it was written to allow people to apply for vacatur
or a sentence reduction in the cases in which their original conviction
is a lower level offense. Unfortunately, under the current version of
the law, there is a question of whether people with lower level offenses
are eligible to apply for relief, and if so, they could only get relief
if they demonstrated "severe and ongoing consequences" from their
conviction. This did not appear to be the intention of the drafters.
This bill sets the MRTA in accordance with the goals and mission of the
laws drafters.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately, and shall be deemed to have been
in full force and effect on and after March 31, 2021.