Senate Bill S495

2019-2020 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2020	referred to codes
Jan 09, 2019	referred to codes

co-Sponsors

2019-S495 (ACTIVE) - Details

See Assembly Version of this Bill:: A2544
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, A10175
2015-2016: S137, A6218
2017-2018: S2736, S7013, A622, A667

2019-S495 (ACTIVE) - Summary

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

2019-S495 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S495

SPONSOR: RIVERA
 
TITLE OF BILL:  An act to amend the penal law, in relation to de-cri-
minalizing the personal possession of marihuana; to amend the criminal
procedure law, in relation to certain pleas; and to amend the legisla-
tive 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 Equi-
ty 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 I of section 170.56 of the criminal proce-
dure 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 enact-
ment 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 secticn 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 (23 grams or less)
has been "decriminalized" in New York State. It is a violation punisha-
ble 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 16,590 people arrested in New York City in 2015 for possessing
small amounts of marijuana, nearly 88 percent were black or Latino.
These severe disparities are alarming and indefensible when considering
that data from the Substance Abuse and Mental Health Services Adminis-
tration 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 deter-
mine 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 analo-
gous to New York's "fiscal notes."

 
PRIOR LEGISLATIVE HISTORY:

2016: S137B/A6218-REFERRED TO CODES/referred to codes
2015: S137A/A6218-REFERRED TO CODES/referred to codes
2014: S7927/A10175-REFERRED TO RULES/referred to codes
2017-2018: S7013

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

2019-S495 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    495
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced by Sens. RIVERA, KENNEDY, MONTGOMERY, SEPULVEDA -- 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; 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD05601-01-9

 S. 495                              2
 
   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.]
   § 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.

 S. 495                              3
 
   §  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,  paragraph  (i) as amended by chapter 368 of the laws of
 2015 and the opening paragraph of (i) as amended by chapter 189  of  the
 laws  of  2018,  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,  sex  trafficking  of a child under section
 230.34-a 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, such subdivision as renumbered by chapter
 142 of the laws of 1991, 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. 495                              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].
   § 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.

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Senate Bill S495

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

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co-Sponsors

2019-S495 (ACTIVE) - Details

2019-S495 (ACTIVE) - Summary

2019-S495 (ACTIVE) - Sponsor Memo

2019-S495 (ACTIVE) - Bill Text download pdf

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Sponsored By

Gustavo Rivera

Archive: Last Bill Status - In Senate Committee Codes Committee

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co-Sponsors

Timothy M. Kennedy

Velmanette Montgomery

Luis R. Sepúlveda

2019-S495 (ACTIVE) - Details

2019-S495 (ACTIVE) - Summary

2019-S495 (ACTIVE) - Sponsor Memo

2019-S495 (ACTIVE) - Bill Text download pdf

Comments