What's happening
This bill amends New York law to allow for the sealing of certain low-level marijuana-related convictions, particularly for violations of sections 221.05 and 221.10 of the penal law.
Why it matters
Reduces long-term consequences. By sealing low-level marijuana convictions, especially for offenses under sections 221.05 and 221.10, the bill aims to reduce barriers to employment, housing, and education that often persist for individuals with minor drug records.
Automatic and accessible relief. For some violations (like 221.05), sealing is automatic for recent convictions; for others (221.10), individuals can petition the court, shifting the burden to the district attorney to show why sealing should not be granted—making relief more attainable.
Limits unwanted disclosure. Updates to criminal history reporting ensure that sealed marijuana convictions are excluded from most background checks, significantly reducing the risk of these offenses resurfacing in standard screenings and protecting individual privacy.
Forbids waiving of sealing rights. The bill explicitly prohibits requiring or allowing individuals to waive their right to sealing these convictions as part of plea deals or sentencing agreements, safeguarding against coercive or unfair bargaining in the justice system.
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Who cares
Headline styles
Seal Marijuana Possession Records
Plain English, a few words. Used as the page title.
Sponsors
History
- Reported and committed to judiciary
- Notice of committee consideration - requested
- Referred to codes
- Referred to codes
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Seal Marijuana Possession Records
In Senate Committee · Rules · Sponsor Crystal Peoples-Stokes
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
3809
2017-2018 Regular Sessions
IN SENATE
January 27, 2017
Introduced by Sens. BAILEY, HAMILTON -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in relation to sealing records for certain proceedings
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. 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 knowingly 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] a crime defined in this article, except a crime defined in section 221.10 of this article provided, however, that the record of such conviction does not demonstrate a conviction under subdivision two of such section 221.10, or article 220 of this chapter, committed within the three years immediately 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 imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.
§ 2. Paragraph (k) of subdivision 3 of section 160.50 of the criminal procedure law, as added by chapter 835 of the laws of 1977 and as relettered by chapter 192 of the laws of 1980, is amended to read as follows:
(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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05532-01-7
S. 3809 2
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] of section 221.10 of the penal law provided, however, that the record of such conviction does not demonstrate a conviction under subdivision two of such section 221.10, or for a petty offense or offenses. No defendant shall be required or permitted to waive eligibility for sealing pursuant to this paragraph as part of a plea of guilty, sentence or any agreement related to a conviction for a violation of section 221.05 or section 221.10 of the penal law and any such waiver shall be deemed void and wholly unenforceable.
§ 3. Section 160.50 of the criminal procedure law is amended by adding three new subdivisions 5, 6 and 7 to read as follows:
5. A person convicted of a violation of section 221.10 of the penal law, other than a conviction after trial of, or plea of guilty to, subdivision two of such section 221.10, prior to the effective date of this subdivision may upon motion apply to the court in which such termination occurred, upon not less than twenty days notice to the district attorney, for an order granting to such person the relief set forth in subdivision one of this section, and such order shall be granted unless the district attorney demonstrates that the interests of justice require otherwise.
6. (a) Notwithstanding any other provision of law except as provided in paragraph (d) of subdivision one of this section and paragraph (e) of subdivision four of section eight hundred thirty-seven of the executive law: (i) 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 executive law, and returns a report thereon, all references to a conviction for a violation of section 221.10 of the penal law, other than a conviction after trial of, or plea of guilty to, subdivision two of such section 221.10, shall be excluded from such report; and (ii) 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 a violation of section 221.10 of the penal law, other than a conviction after trial of, or plea of guilty to, subdivision two of such section 221.10, unless such search is conducted solely for a bona fide research purpose, provided that such information, if so disseminated, shall be disseminated in accordance with procedures established by the chief administrator of the courts to assure the security and privacy of identification and information data, which shall include the execution of an agreement which protects the confidentiality of the information and reasonably protects against data linkage to individuals.
(b) Nothing contained in this subdivision shall be deemed to permit or require the release, disclosure or other dissemination by the division of criminal justice services or the office of court administration of criminal history record information that has been sealed in accordance with law.
7. A person convicted of a violation of section 221.05 of the penal law shall, on the effective date of this subdivision, have such conviction immediately sealed pursuant to subdivision one of this section if such conviction occurred less than three years prior to such effective date.
S. 3809 3
§ 4. This act shall take effect on the sixtieth day after it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law and the criminal procedure law, in relation to sealing records for certain proceedings
Purpose
To permit the sealing of certain marijuana-possession convictions under section 221.10 of the Penal Law.
Summary of provisions
Section 1 of the bill amends section 221.05 of the Penal Law, New York's basic possession of marijuana statute. It provides that a previous conviction under subdivision one of section 221.10 of the penal law shall not result in an increase in the maximum fine for a subsequent conviction under PL § 221.05, the basic marijuana statute. Subdivision one of PL § 221.10 prohibits knowingly and unlawfully possessing in a public place marijuana that is burning or open to public view.
Read the full memo (792 words)
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.
According to the Drug Policy Alliance, in 2015, nearly 16,590 arrests were made in New York City and nearly 20,992 statewide for possession of marijuana, an average of 1,382 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, 50.36 percent of those arrested for possession of marijuana in 2015 were African American, and 37.76 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
2015-16: S.8047/A.10092(Peoples-Stokes) - Referred to Rules
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 2015.
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