S T A T E O F N E W Y O R K
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667
2017-2018 Regular Sessions
I N A S S E M B L Y
January 9, 2017
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Introduced by M. of A. RODRIGUEZ -- read once and referred to the
Committee on Codes
AN ACT to amend the penal law, in relation to de-criminalizing the
personal possession of marihuana; to amend the criminal procedure law,
in relation to certain pleas; and to amend the legislative law, in
relation to specifying requirements with respect to bills affecting
the penal law
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "fairness
and equity act".
§ 2. Subdivisions 5 and 6 of section 1.05 of the penal law, subdivi-
sion 5 as amended by chapter 612 of the laws of 1982 and subdivision 6
as amended by chapter 98 of the laws of 2006, are amended to read as
follows:
5. To provide for an appropriate public response to particular
offenses, including consideration of the consequences of the offense for
the victim, including the victim's family, and the community; [and]
6. TO ENSURE THAT LAWS ARE ENFORCED EQUALLY AND FAIRLY AND DO NOT
RESULT IN A DISPARATE IMPACT ON PEOPLE BECAUSE OF THEIR RACE OR ETHNICI-
TY; AND
7. To insure the public safety by preventing the commission of
offenses through the deterrent influence of the sentences authorized,
the rehabilitation of those convicted, the promotion of their successful
and productive reentry and reintegration into society, and their
confinement when required in the interests of public protection.
§ 3. Section 221.05 of the penal law, as added by chapter 360 of the
laws of 1977, is amended to read as follows:
§ 221.05 Unlawful possession of marihuana.
A person is guilty of unlawful possession of marihuana when he know-
ingly and unlawfully possesses marihuana AND SUCH MARIHUANA IS BURNING.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00486-01-7
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Unlawful possession of marihuana is a violation punishable only by a
fine of not more than one hundred dollars. [However, where the defendant
has previously been convicted of an offense defined in this article or
article 220 of this chapter, committed within the three years immediate-
ly preceding such violation, it shall be punishable (a) only by a fine
of not more than two hundred dollars, if the defendant was previously
convicted of one such offense committed during such period, and (b) by a
fine of not more than two hundred fifty dollars or a term of imprison-
ment not in excess of fifteen days or both, if the defendant was previ-
ously convicted of two such offenses committed during such period.]
§ 4. Section 221.10 of the penal law, as amended by chapter 265 of the
laws of 1979, subdivision 2 as amended by chapter 75 of the laws of
1995, is amended to read as follows:
§ 221.10 Criminal possession of marihuana in the fifth degree.
A person is guilty of criminal possession of marihuana in the fifth
degree when he knowingly and unlawfully possesses[:
1. marihuana in a public place, as defined in section 240.00 of this
chapter, and such marihuana is burning or open to public view; or
2.] one or more preparations, compounds, mixtures or substances
containing marihuana and the preparations, compounds, mixtures or
substances are of an aggregate weight of more than twenty-five grams.
Criminal possession of marihuana in the fifth degree is a class B
misdemeanor.
§ 5. Subdivision 1 of section 170.56 of the criminal procedure law, as
amended by chapter 360 of the laws of 1977, is amended to read as
follows:
1. Upon or after arraignment in a local criminal court upon an infor-
mation, a prosecutor's information or a misdemeanor complaint, where the
sole remaining count or counts charge a violation or violations of
section 221.05, 221.10, 221.15, 221.35 or 221.40 of the penal law and
before the entry of a plea of guilty thereto or commencement of a trial
thereof, the court, upon motion of a defendant, may order that all
proceedings be suspended and the action adjourned in contemplation of
dismissal, or upon a finding that adjournment would not be necessary or
appropriate and the setting forth in the record of the reasons for such
findings, may dismiss in furtherance of justice the accusatory instru-
ment; provided, however, that the court may not order such adjournment
in contemplation of dismissal or dismiss the accusatory instrument if:
(a) the defendant has previously been granted such adjournment in
contemplation of dismissal, or (b) the defendant has previously been
granted a dismissal under this section, or (c) the defendant has previ-
ously been convicted of any offense involving controlled substances, or
(d) the defendant has previously been convicted of a crime and the
district attorney does not consent or (e) the defendant has previously
been adjudicated a youthful offender on the basis of any act or acts
involving controlled substances and the district attorney does not
consent. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN THIS SUBDIVISION,
THE COURT MAY ORDER THAT ALL PROCEEDINGS BE SUSPENDED AND THE ACTION
ADJOURNED IN CONTEMPLATION OF DISMISSAL BASED UPON A FINDING OF EXCEP-
TIONAL CIRCUMSTANCES. FOR PURPOSES OF THIS SUBDIVISION, EXCEPTIONAL
CIRCUMSTANCES EXIST WHEN, REGARDLESS OF THE ULTIMATE DISPOSITION OF THE
CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKELY TO RESULT IN SEVERE COLLA-
TERAL CONSEQUENCES, INCLUDING, BUT NOT LIMITED TO, THOSE THAT COULD
LEAVE A NONCITIZEN INADMISSIBLE OR DEPORTABLE FROM THE UNITED STATES.
§ 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
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laws of 2010 and paragraph (i) as amended by chapter 368 of the laws of
2015, are amended and a new paragraph (j) is added to read as follows:
(h) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States; [or]
(i) The judgment is a conviction where the arresting charge was under
section 240.37 (loitering for the purpose of engaging in a prostitution
offense, provided that the defendant was not alleged to be loitering for
the purpose of patronizing a person for prostitution or promoting pros-
titution) or 230.00 (prostitution) or 230.03 (prostitution in a school
zone) of the penal law, and the defendant's participation in the offense
was a result of having been a victim of sex trafficking under section
230.34 of the penal law, labor trafficking under section 135.35 of the
penal law, aggravated labor trafficking under section 135.37 of the
penal law, compelling prostitution under section 230.33 of the penal
law, or trafficking in persons under the Trafficking Victims Protection
Act (United States Code, title 22, chapter 78); provided that
(i) a motion under this paragraph shall be made with due diligence,
after the defendant has ceased to be a victim of such trafficking or
compelling prostitution crime or has sought services for victims of such
trafficking or compelling prostitution crime, subject to reasonable
concerns for the safety of the defendant, family members of the defend-
ant, or other victims of such trafficking or compelling prostitution
crime that may be jeopardized by the bringing of such motion, or for
other reasons consistent with the purpose of this paragraph; and
(ii) official documentation of the defendant's status as a victim of
trafficking, compelling prostitution or trafficking in persons at the
time of the offense from a federal, state or local government agency
shall create a presumption that the defendant's participation in the
offense was a result of having been a victim of sex trafficking, compel-
ling prostitution or trafficking in persons, but shall not be required
for granting a motion under this paragraph[.]; OR
(J) THE JUDGMENT OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS PARA-
GRAPH AND IS A CONVICTION FOR AN OFFENSE AS DEFINED BY SECTION 221.10 OF
THE PENAL LAW (CRIMINAL POSSESSION OF MARIHUANA IN THE FIFTH DEGREE), AS
IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH, PROVIDED THAT
THE ACCUSATORY INSTRUMENT THAT UNDERLIES THE JUDGMENT DOES NOT INCLUDE
AN ALLEGATION THAT THE DEFENDANT POSSESSED MORE THAN TWENTY-FIVE GRAMS
OF MARIHUANA.
§ 7. Subdivision 6 of section 440.10 of the criminal procedure law, as
added by chapter 332 of the laws of 2010, is amended to read as follows:
6. If the court grants a motion under paragraph (i) OR PARAGRAPH (J)
of subdivision one of this section, it must vacate the judgment and
dismiss the accusatory instrument, and may take such additional action
as is appropriate in the circumstances.
§ 8. Paragraphs (i), (j) and (k) of subdivision 3 of section 160.50 of
the criminal procedure law, paragraphs (i) and (j) as added by chapter
905 of the laws of 1977 and paragraph (k) as added by chapter 835 of the
laws of 1977 and as relettered by chapter 192 of the laws of 1980, are
amended to read as follows:
(i) prior to the filing of an accusatory instrument in a local crimi-
nal court against such person, the prosecutor elects not to prosecute
such person. In such event, the prosecutor shall serve a certification
of such disposition upon the division of criminal justice services and
upon the appropriate police department or law enforcement agency which,
upon receipt thereof, shall comply with the provisions of paragraphs
(a), (b), (c) and (d) of subdivision one of this section in the same
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manner as is required thereunder with respect to an order of a court
entered pursuant to said subdivision one[.]; OR
(j) following the arrest of such person, the arresting police agency,
prior to the filing of an accusatory instrument in a local criminal
court but subsequent to the forwarding of a copy of the fingerprints of
such person to the division of criminal justice services, elects not to
proceed further. In such event, the head of the arresting police agency
shall serve a certification of such disposition upon the division of
criminal justice services which, upon receipt thereof, shall comply with
the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of
this section in the same manner as is required thereunder with respect
to an order of a court entered pursuant to said subdivision one[.]; OR
(k) (i) The accusatory instrument alleged a violation of article two
hundred twenty or section 240.36 of the penal law, prior to the taking
effect of article two hundred twenty-one of the penal law, or a
violation of article two hundred twenty-one of the penal law; (ii) the
sole controlled substance involved is marijuana; AND (iii) the
conviction was only for a violation or violations[; and (iv) at least
three years have passed since the offense occurred].
§ 9. The legislative law is amended by adding a new section 52-a to
read as follows:
§ 52-A. REQUIREMENT WITH RESPECT TO BILLS INCREASING CORRECTIONAL
POPULATIONS. 1. WHENEVER A COMMITTEE REPORTS A BILL FAVORABLY WHICH, IF
PASSED, WOULD INCREASE OR DECREASE THE PRETRIAL OR SENTENCED POPULATION
OF CORRECTIONAL FACILITIES IN THIS STATE, A MAJORITY OF THE COMMITTEE
MEMBERS VOTING MAY REQUEST THAT A RACIAL AND ETHNIC IMPACT STATEMENT BE
PREPARED. EACH HOUSE OF THE LEGISLATURE SHALL SEPARATELY PRESCRIBE RULES
REQUIRING RACIAL AND ETHNIC IMPACT STATEMENTS TO ACCOMPANY, ON A SEPA-
RATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS HAVE BEEN
REPORTED FROM COMMITTEE. RACIAL AND ETHNIC IMPACT STATEMENTS SHALL BE
PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL PASSAGE. THE STATEMENT
SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT ON THE
RACIAL AND ETHNIC COMPOSITION OF THE CORRECTIONAL FACILITY POPULATION
AND AN EXPLANATION OF THAT IMPACT. ANY RACIAL AND ETHNIC IMPACT STATE-
MENT PRINTED WITH OR PREPARED FOR A BILL IS SOLELY FOR THE PURPOSE OF
INFORMATION, SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGISLA-
TURE AND SHALL NOT BE CONSTRUED TO REPRESENT THE INTENT OF THE LEGISLA-
TURE OR EITHER CHAMBER THEREOF FOR ANY PURPOSE. EACH RACIAL AND ETHNIC
IMPACT STATEMENT SHALL BEAR THE FOLLOWING DISCLAIMER: "THE FOLLOWING
RACIAL AND ETHNIC IMPACT STATEMENT IS PREPARED FOR THE BENEFIT OF THE
MEMBERS OF THE LEGISLATURE, SOLELY FOR PURPOSES OF INFORMATION, SUMMA-
RIZATION AND EXPLANATION AND DOES NOT REPRESENT THE INTENT OF THE LEGIS-
LATURE OR EITHER CHAMBER THEREOF FOR ANY PURPOSE."
2. RACIAL AND ETHNIC IMPACT STATEMENTS SHALL BE MADE AVAILABLE TO THE
PUBLIC IN THE SAME MANNER THAT THE TEXT OF BILLS ARE MADE AVAILABLE TO
THE PUBLIC.
§ 10. This act shall take effect on the sixtieth day after it shall
have become a law.