Relates to sealing records for certain proceedings

Section 2 of the bill adds 221.10 of the Penal Law to the list of offenses included in paragraph (k) of subdivision 3 for which sealing of records is required upon conviction. Further, it prohibits a waiver of sealing as part of a plea agreement.

Section 3 of the bill makes retroactive certain aspects of this bill by providing a mechanism for persons convicted under 221.10, and in certain circumstances 221.05, prior to the effective date of the bill, to have those records sealed.

Justification

Under New York law, possession of 25 grams of marijuana or less is a violation, treated under PL 221.05 as essentially a traffic offense. However, often individuals possessing a small amount of marijuana are charged with a misdemeanor offense under section 221.10 of the penal law. This is largely due the requirement in current law that the marijuana not be burning in a public place or in public view. It has been widely reported that police officers sometimes request or demand that suspects empty their pockets or purse-- and then charge them under the misdemeanor law based on "public view" exposure of the substance"*

Many of the cases brought under § 221.10 (1), charging small-quantity possession of marijuana in a public place and open to public view, could be handled effectively with an appearance ticket and a potential fine, and without the stigma and consequences that may follow a misdemeanor- level conviction. However, instead of achieving decriminalization of marijuana, as was intended in the 1977 statute , individuals throughout New York are still facing misdemeanor prosecution for the simple possession of a small amount of marijuana.

In 2014, nearly 28,000 arrests were made in New York City and nearly 4,000 outside of NYC for possession of marijuana, an average of 2,339 per month.** A permanent criminal record is the most enduring and long lasting cost of these arrests. Records of arrests and convictions are now are readily accessible to the public. Employers, landlords, credit agencies, licensing boards, and student loan providers routinely search databases for background checks on applicants. Nurses, security guards, home health aides and others licensed by the state may be at risk of losing their licenses and jobs based on one misdemeanor conviction. For the immigrant population, such a conviction may, depending on the circumstances, result in deportation from the United States. Landlords and public housing authorities may seek to evict a person as a result of such a conviction. While an individual misdemeanor conviction for possession of marijuana often does not result in jail time, such a conviction may have the effect of exposing an individual to significant legal difficulties and a lifetime of collateral consequences.

Furthermore, these effects are disproportionately felt in New York's African American and Latino communities. According to the New York State Division of Criminal Justice Services, 50.47 percent of those arrested for possession of marijuana in 2015 were African American, and 38.18 percent of the persons arrested were Latino.*** While studies show that white persons use marijuana at comparable rates, only 8 percent of those arrested for possession of marijuana are white. **** Thus, the crippling consequences of such an arrest or conviction mainly impact only the minority segment of our population.

This bill is necessary not only to limit the stigma and collateral consequences associated with a conviction for basic marijuana possession, behavior the Legislature has already sought to decriminalize, but also to address the rampant disparity that exists regarding the implementation and effect of these laws.

Prior legislative history

New bill.

Fiscal implications

Minimal.

Effective date

This act shall take effect on the sixtieth day after it has become law. *See People v Johnson, 2016 N.Y. Misc. LEX1S 629, 2016 NY Slip Op 26057 (N.Y. City Crim. Ct. Mar. 2, 2016) **New York State Division of Criminal Justice Services. Ages 16 and older. All arrests where marijuana possession was the only or highest charge. 1-Itt://marijuana-arrests.com/ May 2014.