NY State Senate Bill 2015-S137B

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 13, 2016	print number 137b
Apr 13, 2016	amend and recommit to codes
Jan 06, 2016	referred to codes
Jun 16, 2015	print number 137a
Jun 16, 2015	amend (t) and recommit to codes
Jan 07, 2015	referred to codes

co-Sponsors

View additional co-sponsors

2015-S137 - Details

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
2017-2018: S2736, S7013
2019-2020: S495

2015-S137 - Summary

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

2015-S137 - Sponsor Memo

                                 BILL NUMBER:  S137

 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; 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

 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 eliminate
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 that is
"burning" or "open to public view" is a violation, not a misdemeanor.

Sections 5 and 6 define criminal sale of less than 25 grams of
marihuana as selling marihuana for consideration.

Section 7 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 8 amends section 210.46 of the criminal procedure law to
reflect the repeal of section 221.35 of the penal law.

Sections 9 and 10 amend section 440.10 of the criminal procedure law
to provide for the vacating of convictions that occurred before the
enactment of this bill.

Section 11 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 12 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 13 amends paragraph f of subdivision 4 of section 837 of the
executive law to require that the Division of Criminal Justice
Services conduct research and analysis necessary to complete racial
and ethnic impact statements and present an annual report containing
statistics and other information relevant to such statements.

Section 14 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." Dozens of additional people were charged with
criminal drug sales for the equivalent of sharing a single "joint."

Of the 28,644 people arrested in New York City in 2013 for possessing
small amounts of marijuana, nearly 87 percent were black or Latino,
mostly young men. Of those arrested for sharing, the vast majority
were black or Latino young men between the ages of 16-30. 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, including sharing a single marijuana
cigarette. It also creates a process for those who have been arrested
for possessing or sharing small 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 :

2014: S7927/A10175- REFERRED TO RULES

 EFFECTIVE DATE :
The one hundred eightieth day after it shall have become law.

2015-S137 - Bill Text download pdf

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

                                   137

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by Sen. SQUADRON -- 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;  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00177-01-5

S. 137                              2

  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.
  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

S. 137                              3

(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 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

S. 137                              4

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).
  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

S. 137                              5

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-
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.

co-Sponsors

View additional co-sponsors

2015-S137A - Details

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
2017-2018: S2736, S7013
2019-2020: S495

2015-S137A - Summary

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

2015-S137A - Sponsor Memo

                                BILL NUMBER:S137A

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 28,644 people arrested in New York City in 2013 for possessing
small amounts of marijuana, nearly 87 percent were black or Latino,
mostly young men. Of those arrested for sharing, the vast majority
were black or Latino young men between the ages of 16-30. 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:


2014: S7927/A10175- REFERRED TO RULES

EFFECTIVE DATE:

The first of November after it shall have become law.

2015-S137A - Bill Text download pdf

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

                                 137--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by  Sens.  SQUADRON,  ESPAILLAT, HAMILTON, HASSELL-THOMPSON,
  HOYLMAN, MONTGOMERY, PARKER, PERKINS, RIVERA, SERRANO  --  read  twice
  and ordered printed, and when printed to be committed to the Committee
  on  Codes  -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

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".
  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 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00177-03-5

S. 137--A                           2

  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 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.]
  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. 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

S. 137--A                           3

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  6. 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 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.
  S 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.
  S 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,
upon receipt thereof, shall comply with  the  provisions  of  paragraphs
(a),  (b),  (c)  and  (d) of subdivision one of this section in the same

S. 137--A                           4

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 9. The legislative law is amended by adding a new  section  52-a  to
read as follows:
  S  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.
  S 10. This act shall  take  effect  on  the  first  of  November  next
succeeding the date upon which it shall have become a law.

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2015-S137B (ACTIVE) - Details

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
2017-2018: S2736, S7013
2019-2020: S495

2015-S137B (ACTIVE) - Summary

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

2015-S137B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S137B

 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 28,644 people arrested in New York City in 2013 for possessing
small amounts of marijuana, nearly 87 percent were black or Latino,
mostly young men. Of those arrested for sharing, the vast majority
were black or Latino young men between the ages of 16-30. 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 :

2014: S7927/A10175- REFERRED TO RULES

 EFFECTIVE DATE :
The first of November after it shall have become law.

2015-S137B (ACTIVE) - Bill Text download pdf

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

                                 137--B

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by  Sens.  SQUADRON,  ESPAILLAT, HAMILTON, HASSELL-THOMPSON,
  HOYLMAN, MONTGOMERY, PARKER, PERKINS, RIVERA, SERRANO  --  read  twice
  and ordered printed, and when printed to be committed to the Committee
  on  Codes  -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted  to  said  committee  --  recommitted  to  the
  Committee on Codes in accordance with Senate Rule 6, sec. 8 -- commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

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".
  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 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

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

                                                           LBD00177-05-6

S. 137--B                           2

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 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.]
  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. 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-

S. 137--B                           3

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 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.
  S 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.
  S 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:

S. 137--B                           4

  (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 9. The legislative law is amended by adding a new  section  52-a  to
read as follows:
  S  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.
  S 10. This act shall  take  effect  on  the  first  of  November  next
succeeding the date upon which it shall have become a law.

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