S T A T E O F N E W Y O R K
________________________________________________________________________
7109
2021-2022 Regular Sessions
I N A S S E M B L Y
April 22, 2021
___________
Introduced by M. of A. MEEKS -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, the criminal procedure law and the gener-
al business law, in relation to decriminalizing possession of
controlled substances; to amend the public health law, in relation to
establishing the drug decriminalization task force; to repeal certain
provisions of the penal law related thereto; and providing for the
repeal of certain provisions upon the expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. The legislature hereby finds that
substance use disorder is a disease and should therefore be treated
using a public health, rather than a criminal-legal-system-centered
approach. Existing laws criminalizing the possession of drugs have been
ineffective in reducing drug use and preventing substance use disorder.
Instead, these laws have devastated individuals, families, and communi-
ties. Treating substance use as a crime by arresting and incarcerating
people for personal use offenses causes significant harm to individuals
who use drugs by disrupting and further destabilizing their lives. It
also contributes to an increased risk of death, the spread of infectious
diseases, mass incarceration, the separation of families, and barriers
to accessing housing, employment, and other vital services. Furthermore,
even though research shows that drugs are used and sold at similar
levels across all races, laws criminalizing the use of drugs have
disproportionately impacted Black and Latinx communities. The purpose of
this legislation is to save lives and to help transform New York's
approach to drug use from one based on criminalization and stigma to one
based on science and compassion, by eliminating criminal and civil
penalties for the personal possession of controlled substances.
§ 2. Section 220.03 of the penal law, as amended by section 4 of part
I of chapter 57 of the laws of 2015, is amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04043-01-1
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§ 220.03 [Criminal] UNLAWFUL possession of a controlled substance [in
the seventh degree].
A person is guilty of [criminal] UNLAWFUL possession of a controlled
substance [in the seventh degree] when [he or she] THEY knowingly and
unlawfully [possesses] POSSESS a controlled substance; provided, howev-
er, that it shall not be a violation of this section when a person
possesses a residual amount of a controlled substance and that residual
amount is in or on a hypodermic syringe or hypodermic needle obtained
and possessed pursuant to section thirty-three hundred eighty-one of the
public health law, which includes the state's syringe exchange and phar-
macy and medical provider-based expanded syringe access programs; nor
shall it be a violation of this section when a person's unlawful
possession of a controlled substance is discovered as a result of seek-
ing immediate health care as defined in paragraph (b) of subdivision
three of section 220.78 of [the penal law] THIS ARTICLE, for either
another person or [him or herself] THEMSELF because such person is expe-
riencing a drug or alcohol overdose or other life threatening medical
emergency as defined in paragraph (a) of subdivision three of section
220.78 of [the penal law] THIS ARTICLE.
[Criminal] UNLAWFUL possession of a controlled substance [in the
seventh degree] is a [class A misdemeanor] VIOLATION PUNISHABLE BY A
FINE OF UP TO FIFTY DOLLARS OR PARTICIPATION IN A NEEDS SCREENING TO
IDENTIFY HEALTH AND OTHER SERVICE NEEDS, INCLUDING BUT NOT LIMITED TO
SERVICES THAT MAY ADDRESS ANY PROBLEMATIC SUBSTANCE USE AND MENTAL
HEALTH CONDITIONS, LACK OF EMPLOYMENT, HOUSING, OR FOOD, AND ANY NEED
FOR CIVIL LEGAL SERVICES. THE SCREENING SHOULD PRIORITIZE THE INDIVID-
UAL'S SELF-IDENTIFIED NEEDS FOR REFERRAL TO APPROPRIATE SERVICES. SUCH
SCREENING SHALL BE CONDUCTED BY INDIVIDUALS TRAINED IN THE USE OF
EVIDENCE-BASED, CULTURALLY AND GENDER COMPETENT TRAUMA-INFORMED PRAC-
TICES. UPON VERIFICATION THAT THE PERSON HAS COMPLETED THE SCREENING
WITHIN FORTY-FIVE DAYS OF WHEN THE FINE WAS IMPOSED, THE FINE IMPOSED BY
THIS SECTION SHALL BE WAIVED. FAILURE TO PAY SUCH FINE SHALL NOT BE THE
BASIS FOR FURTHER PENALTIES OR FOR A TERM OF INCARCERATION.
§ 3. Subdivision 3 of section 160.50 of the criminal procedure law is
amended by adding a new paragraph (m) to read as follows:
(M) (I) THE CONVICTION WAS FOR A VIOLATION OF AN OFFENSE DEFINED IN
SECTION 220.03 OF THE PENAL LAW PRIOR TO THE EFFECTIVE DATE OF THIS
PARAGRAPH.
(II) THE CONVICTION IS FOR AN OFFENSE DEFINED IN SECTION 220.03 OF THE
PENAL LAW.
NO DEFENDANT SHALL BE REQUIRED OR PERMITTED TO WAIVE ELIGIBILITY FOR
SEALING OR EXPUNGEMENT PURSUANT TO THIS SECTION AS PART OF A PLEA OF
GUILTY, SENTENCE OR ANY AGREEMENT RELATED TO A CONVICTION FOR A
VIOLATION OF SECTION 220.03 OF THE PENAL LAW AND ANY SUCH WAIVER SHALL
BE DEEMED VOID AND WHOLLY UNENFORCEABLE.
§ 4. Paragraph (a) of subdivision 5 of section 160.50 of the criminal
procedure law, as amended by chapter 132 of the laws of 2019, is amended
to read as follows:
(a) Expungement of certain [marihuana-related] records. A conviction
for an offense described in SUBPARAGRAPH (III) OF paragraph (k) OR
SUBPARAGRAPH (II) OF PARAGRAPH (M) of subdivision three of this section
shall, [on and after the effective date of this paragraph,] in accord-
ance with the provisions of this paragraph, be vacated and dismissed,
and all records of such conviction or convictions and related to such
conviction or convictions shall be expunged, as described in subdivision
forty-five of section 1.20 of this chapter, and the matter shall be
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considered terminated in favor of the accused and deemed a nullity,
having been rendered by this paragraph legally invalid. All such records
for an offense described in this paragraph where the conviction was
entered on or before the effective date of the chapter of the laws of
2019 OR 2020, AS APPLICABLE, that amended this paragraph shall be
expunged promptly and, in any event, no later than one year after such
effective date.
§ 5. Subparagraph (ii) of paragraph (b) of subdivision 5 of section
160.50 of the criminal procedure law, as added by chapter 131 of the
laws of 2019, is amended to read as follows:
(ii) where automatic vacatur, dismissal, and expungement, including
record destruction if requested, is required by this subdivision but any
record of the court system in this state has not yet been updated to
reflect same (A) notwithstanding any other provision of law except as
provided in paragraph (d) of subdivision one of this section and para-
graph (e) of subdivision four of section eight hundred thirty-seven of
the executive law: (1) when the division of criminal justice services
conducts a search of its criminal history records, maintained pursuant
to subdivision six of section eight hundred thirty-seven of the execu-
tive law, and returns a report thereon, all references to a conviction
for an offense described in paragraph (k) OR (M) of subdivision three of
this section shall be excluded from such report; and (2) the chief
administrator of the courts shall develop and promulgate rules as may be
necessary to ensure that no written or electronic report of a criminal
history record search conducted by the office of court administration
contains information relating to a conviction for an offense described
in paragraph (k) OR (M) of subdivision three of this section; and (B)
where court records relevant to such matter cannot be located or have
been destroyed, and a person or the person's attorney presents to an
appropriate court employee a fingerprint record of the New York state
division of criminal justice services, or a copy of a court disposition
record or other relevant court record, which indicates that a criminal
action or proceeding against such person was terminated by conviction of
an offense described in paragraph (k) OR (M) of subdivision three of
this section, then promptly, and in any event within thirty days after
such notice to such court employee, the chief administrator of the
courts or [his or her] THEIR designee shall assure that such vacatur,
dismissal, and expungement, including record destruction if requested,
have been completed in accordance with subparagraph (i) of this para-
graph.
§ 6. Paragraph (k) of subdivision 1 of section 440.10 of the criminal
procedure law, as added by chapter 132 of the laws of 2019, is amended
to read as follows:
(k) The judgment [occurred prior to the effective date of this para-
graph and] is a conviction for an offense as defined in subparagraph (i)
or (ii) of paragraph (k) OR SUBPARAGRAPH (I) OF PARAGRAPH (M) of subdi-
vision three of section 160.50 of this part, in which case the court
shall presume that a conviction by plea for the aforementioned offenses
was not knowing, voluntary and intelligent if it has [severe or] ongoing
COLLATERAL consequences, including but not limited to potential or actu-
al immigration consequences, and shall presume that a conviction by
verdict for the aforementioned offenses constitutes cruel and unusual
punishment under section five of article one of the state constitution,
based on those consequences. The people may rebut these presumptions.
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§ 7. Subdivision 6 of section 440.10 of the criminal procedure law, as
amended by chapter 131 of the laws of 2019, is amended to read as
follows:
6. If the court grants a motion under paragraph (i) or paragraph (k)
of subdivision one of this section, it must vacate the judgment and
dismiss the accusatory instrument, and may take such additional action
as is appropriate in the circumstances. A DEFENDANT SHALL NOT BE
REQUIRED TO DEMONSTRATE PREJUDICE PRIOR TO VACATING THE JUDGMENT.
§ 8. Subdivision 9 of section 440.10 of the criminal procedure law, as
added by section 4 of part OO of chapter 55 of the laws of 2019, is
amended to read as follows:
9. Upon [granting of] CONSIDERING a motion pursuant to paragraph (j)
of subdivision one of this section, A DEFENDANT SHALL NOT BE REQUIRED TO
DEMONSTRATE PREJUDICE. UPON GRANTING THE MOTION, the court may either:
(a) With the consent of the people, vacate [the judgment or] AND modi-
fy the judgment [by reducing it] to [one of conviction for a lesser] AN
ALTERNATE offense; or
(b) Vacate the judgment and order a new trial wherein the defendant
enters a plea to the same offense in order to permit the court to resen-
tence the defendant in accordance with the amendatory provisions of
subdivision one-a of section 70.15 of the penal law.
§ 9. Section 220.46 of the penal law is REPEALED.
§ 10. Section 220.25 of the penal law is REPEALED.
§ 11. Subdivision 2 of section 850 of the general business law, as
amended by chapter 812 of the laws of 1980, is amended to read as
follows:
2. (A) "Drug-related paraphernalia" consists of the following objects
used for the following purposes:
[(a)] (I) Kits, used or designed for the purpose of planting, propa-
gating, cultivating, growing or harvesting of any species of plant which
is a controlled substance or from which a controlled substance can be
derived;
[(b)] (II) Kits, used or designed for the purpose of manufacturing,
compounding, converting, producing, or preparing controlled substances;
[(c)] (III) Isomerization devices, used or designed for the purpose of
increasing the potency of any species of plant which is a controlled
substance;
[(d)] (IV) Scales and balances, used or designed for the purpose of
weighing or measuring controlled substances; and
[(e)] (V) Diluents and adulterants, including but not limited to
quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or
designed for the purpose of cutting controlled substances; AND
[(f)] (VI) Separation gins, used or designed for the purpose of remov-
ing twigs and seeds in order to clean or refine marihuana[;
(g) Hypodermic syringes, needles and other objects, used or designed
for the purpose of parenterally injecting controlled substances into the
human body;
(h) Objects, used or designed for the purpose of ingesting, inhaling,
or otherwise introducing marihuana, cocaine, hashish, or hashish oil
into the human body].
(B) "DRUG-RELATED PARAPHERNALIA" SHALL NOT INCLUDE OBJECTS USED FOR
THE PURPOSE OF INJECTING, INGESTING, INHALING OR OTHERWISE INTRODUCING
DRUGS INTO THE HUMAN BODY.
§ 12. A person under parole, probation or other state or local super-
vision, or released on bail awaiting trial as of the effective date of
this act shall not be punished or otherwise penalized for conduct that
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is no longer considered criminal under article 220 of the penal law
pursuant to the provisions of this act.
§ 13. The public health law is amended by adding a new section 3395 to
read as follows:
§ 3395. DRUG DECRIMINALIZATION TASK FORCE. 1. THERE IS HEREBY ESTAB-
LISHED A DRUG DECRIMINALIZATION TASK FORCE WHICH, PURSUANT TO THE
PROVISIONS OF THIS SECTION, SHALL DEVELOP RECOMMENDATIONS FOR REFORMING
STATE LAWS, REGULATIONS AND PRACTICES SO THAT THEY ALIGN WITH THE STATED
GOAL OF TREATING SUBSTANCE USE DISORDER AS A DISEASE, RATHER THAN A
CRIMINAL BEHAVIOR.
2. THE TASK FORCE SHALL STUDY AND UTILIZE RELIABLE EVIDENCE AND INFOR-
MATION TO:
(A) IDENTIFY AMOUNTS OF INDIVIDUAL CONTROLLED SUBSTANCES CONSISTENT
WITH NON-PRESCRIBED PERSONAL USE;
(B) IDENTIFY QUALITATIVE AND QUANTITATIVE RESEARCH DATA ABOUT THE
TYPES OF SERVICES THAT PEOPLE WITH SUBSTANCE USE DISORDERS WHO ARE
INVOLVED WITH THE CRIMINAL LEGAL OR CHILD WELFARE SYSTEMS DESIRE AND
CURRENTLY CANNOT ACCESS, AND BARRIERS TO ACCESSING EXISTING SERVICES;
AND
(C) ISSUE RECOMMENDATIONS REGARDING LAWS, REGULATIONS AND POLICIES
IDENTIFIED BY THE TASK FORCE AS NEEDING REFORM, INCLUDING CHANGES TO THE
PENAL LAW, THE SOCIAL SERVICES LAW AND ANY OTHER STATUTES THAT WILL HELP
THE STATE ACHIEVE THE OBJECTIVE OF ADDRESSING THE USE OF DRUGS THROUGH A
PUBLIC HEALTH APPROACH. IN DEVELOPING RECOMMENDATIONS, THE TASK FORCE
SHALL CONSIDER:
(I) THE QUANTITY OF DRUGS USED BY INDIVIDUALS WITH A SUBSTANCE USE
DISORDER;
(II) POLICIES AND PRACTICES THAT WILL PRIORITIZE ACCESS TO TREATMENT
AND RECOVERY FOR INDIVIDUALS WISHING TO ADDRESS THEIR USE OF CONTROLLED
SUBSTANCES;
(III) NON-CARCERAL STRATEGIES TO DIVERT INDIVIDUALS WHO USE DRUGS FROM
THE CRIMINAL LEGAL SYSTEM, INCLUDING CHARGES FOR SELLING DRUGS;
(IV) THE CRIMINALIZATION OF POSSESSION OF METHADONE AND BUPRENORPHINE;
(V) THE IMMIGRATION CONSEQUENCES OF CONVICTIONS FOR CRIMES RELATED TO
DRUG USE;
(VI) HOW TO REDUCE UNNECESSARY FAMILY SEPARATION;
(VII) HOW TO REDUCE CIVIL COLLATERAL CONSEQUENCES OF DRUG CONVICTIONS
INCLUDING EFFECTS ON EMPLOYMENT, HOUSING, EDUCATION, AND LICENSING;
(VIII) HOW TO MAXIMIZE THE USE OF HARM REDUCTION STRATEGIES; AND
(IX) HOW TO ADDRESS RACIAL DISPARITIES IN ENFORCEMENT.
3. (A) (I) SUCH TASK FORCE SHALL BE COMPRISED OF THE COMMISSIONER OF
HEALTH OR THEIR DESIGNEE; THE COMMISSIONER OF ADDICTION SERVICES AND
SUPPORTS OR THEIR DESIGNEE; THE COMMISSIONER OF MENTAL HEALTH OR THEIR
DESIGNEE; THE COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES
OR THEIR DESIGNEE; THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY
SERVICES OR THEIR DESIGNEE; THE DIRECTOR OF THE OFFICE OF INDIGENT LEGAL
SERVICES OR THEIR DESIGNEE; ONE PUBLIC DEFENDER RECOMMENDED BY THE NEW
YORK STATE DEFENDERS ASSOCIATION; ONE PROSECUTOR RECOMMENDED BY THE
DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK; TWO EXPERTS IN
THE ETIOLOGY AND TREATMENT OF SUBSTANCE USE DISORDERS RECOMMENDED BY THE
NEW YORK ACADEMY OF MEDICINE, AT LEAST ONE OF WHOM MUST BE AN EXPERT IN
MEDICATION-ASSISTED TREATMENT AND AT LEAST ONE OF WHOM MUST BE AN EXPERT
IN THE COMORBIDITY OF SUBSTANCE USE DISORDERS WITH MENTAL HEALTH; AND
ELEVEN MEMBERS TO BE APPOINTED AS FOLLOWS: (A) THREE MEMBERS SHALL BE
APPOINTED BY THE GOVERNOR; (B) THREE MEMBERS SHALL BE APPOINTED BY THE
TEMPORARY PRESIDENT OF THE SENATE; (C) ONE MEMBER SHALL BE APPOINTED BY
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THE MINORITY LEADER OF THE SENATE; (D) THREE MEMBERS SHALL BE APPOINTED
BY THE SPEAKER OF THE ASSEMBLY; AND (E) ONE MEMBER SHALL BE APPOINTED BY
THE MINORITY LEADER OF THE ASSEMBLY.
(II) IF APPOINTMENTS ARE NOT MADE WITHIN THIRTY DAYS, THE SENATE
MAJORITY LEADER AND SPEAKER OF THE ASSEMBLY SHALL APPOINT THE REMAINING
MEMBERS.
(III) ALL APPOINTEES SHALL HAVE EXPERTISE IN AT LEAST ONE OF THE
FOLLOWING FIELDS: PUBLIC HEALTH, SUBSTANCE USE DISORDERS, MENTAL HEALTH,
DRUG USER HEALTH AND HARM REDUCTION, THE CRIMINAL LEGAL SYSTEM, CHILD
WELFARE, IMMIGRATION, DRUG POLICY OR RACIAL JUSTICE. FURTHER, APPOINTEES
SHALL INCLUDE PEOPLE WITH PRIOR DRUG CONVICTIONS, INDIVIDUALS WHO HAVE
PARTICIPATED IN A DRUG COURT PROGRAM, INDIVIDUALS WHO HAVE BEEN FORMERLY
INCARCERATED, INDIVIDUALS IMPACTED BY THE CHILD WELFARE SYSTEM, AND
REPRESENTATIVES OF ORGANIZATIONS SERVING COMMUNITIES IMPACTED BY PAST
FEDERAL AND STATE DRUG POLICIES. ALL APPOINTMENTS SHALL BE COORDINATED
TO ENSURE STATEWIDE GEOGRAPHIC REPRESENTATION THAT IS BALANCED AND
DIVERSE IN ITS COMPOSITION.
(IV) THE TASK FORCE SHALL BE CHAIRED BY THE COMMISSIONER OF HEALTH OR
SELECTED BY THE COMMISSIONER FROM THE APPOINTED MEMBERS. THE TASK FORCE
SHALL ELECT A VICE-CHAIR AND OTHER NECESSARY OFFICERS FROM AMONG ALL
APPOINTED MEMBERS.
(B) THE MEMBERS OF THE TASK FORCE SHALL RECEIVE NO COMPENSATION FOR
THEIR SERVICES BUT SHALL BE REIMBURSED FOR EXPENSES ACTUALLY AND NECES-
SARILY INCURRED IN THE PERFORMANCE OF THEIR DUTIES;
(C) NO CIVIL ACTION SHALL BE BROUGHT IN ANY COURT AGAINST ANY MEMBER
OF THE DRUG DECRIMINALIZATION TASK FORCE FOR ANY ACT OR OMISSION NECES-
SARY TO THE DISCHARGE OF THEIR DUTIES AS A MEMBER OF THE TASK FORCE,
EXCEPT AS PROVIDED HEREIN. SUCH MEMBER MAY BE LIABLE FOR DAMAGES IN ANY
SUCH ACTION IF THEY FAILED TO ACT IN GOOD FAITH AND EXERCISE REASONABLE
CARE. ANY INFORMATION OBTAINED BY A MEMBER OF THE TASK FORCE WHILE
CARRYING OUT THEIR DUTIES AS PRESCRIBED IN SUBDIVISION TWO OF THIS
SECTION SHALL ONLY BE UTILIZED IN THEIR CAPACITY AS A MEMBER OF THE TASK
FORCE.
4. NO LATER THAN ONE YEAR AFTER THE EFFECTIVE DATE OF THIS SECTION,
THE TASK FORCE SHALL PROVIDE A REPORT CONTAINING THE RESULTS OF THE
STUDY, INCLUDING EVIDENCE USED AS A BASIS IN MAKING SUCH REPORT, AND ITS
RECOMMENDATIONS, IF ANY, TOGETHER WITH DRAFTS OF LEGISLATION NECESSARY
TO CARRY OUT ITS RECOMMENDATIONS BY FILING SAID REPORT, DOCUMENTATION,
AND DRAFT LEGISLATION, WITH THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE
SENATE, THE MINORITY LEADER OF THE SENATE, THE SPEAKER OF THE ASSEMBLY,
AND THE MINORITY LEADER OF THE ASSEMBLY. THE TASK FORCE SHALL ALSO MAKE
THE REPORT, DOCUMENTATION, AND DRAFT LEGISLATION AVAILABLE TO THE PUBLIC
BY POSTING A COPY ON THE WEBSITE MAINTAINED BY THE OFFICE.
§ 14. This act shall take effect on the one hundred and eightieth day
after it shall have become a law; provided, however, that section thir-
teen shall expire and be deemed repealed two years after such effective
date.