Bill Text: NY S06579 | 2019-2020 | General Assembly | Amended


Bill Title: Provides for vacating records for certain proceedings and modifies the definition of smoking.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Engrossed) 2019-06-20 - returned to senate [S06579 Detail]

Download: New_York-2019-S06579-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         6579--A

                               2019-2020 Regular Sessions

                    IN SENATE

                                      June 16, 2019
                                       ___________

        Introduced by Sens. BAILEY, MYRIE -- read twice and ordered printed, and
          when  printed  to  be committed to the Committee on Rules -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
          relation to vacating records for certain proceedings; and to amend the
          public health law, in relation to the definition of smoking

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 221.05 of the penal law, as added by chapter 360 of
     2  the laws of 1977, is amended to read as follows:
     3  § 221.05 Unlawful possession of marihuana in the second degree.
     4    A person is guilty of unlawful possession of marihuana in  the  second
     5  degree when he knowingly and unlawfully possesses marihuana.
     6    Unlawful  possession  of marihuana in the second degree is a violation
     7  punishable only by a fine of not more than [one hundred] fifty  dollars.
     8  [However,  where  the  defendant  has  previously  been  convicted of an
     9  offense defined in this article or article 220 of this chapter,  commit-
    10  ted  within  the  three  years  immediately preceding such violation, it
    11  shall be punishable (a) only by a fine of  not  more  than  two  hundred
    12  dollars,  if  the defendant was previously convicted of one such offense
    13  committed during such period, and (b) by a fine of  not  more  than  two
    14  hundred fifty dollars or a term of imprisonment not in excess of fifteen
    15  days  or  both,  if  the  defendant was previously convicted of two such
    16  offenses committed during such period.]
    17    § 2. Section 221.10 of the penal law, as amended by chapter 265 of the
    18  laws of 1979 and subdivision 2 as amended by chapter 75 of the  laws  of
    19  1995, is amended to read as follows:
    20  § 221.10 [Criminal]  Unlawful  possession  of  marihuana  in the [fifth]
    21             first degree.
    22    A person is guilty of [criminal] unlawful possession of  marihuana  in
    23  the [fifth] first degree when he knowingly and unlawfully possesses[:
    24    1.  marihuana  in a public place, as defined in section 240.00 of this
    25  chapter, and such marihuana is burning or open to public view; or

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13421-04-9

        S. 6579--A                          2

     1    2.] one  or  more  preparations,  compounds,  mixtures  or  substances
     2  containing  marihuana  and  the  preparations,  compounds,  mixtures  or
     3  substances are of an aggregate weight of more than  [twenty-five  grams]
     4  one ounce.
     5    [Criminal]  Unlawful  possession  of  marihuana  in  the [fifth] first
     6  degree is a [class B misdemeanor] violation punishable only by a fine of
     7  not more than two hundred dollars.
     8    § 3. Subparagraph (ii) of paragraph (i) and paragraph (j) of  subdivi-
     9  sion  1  of  section  440.10 of the criminal procedure law, subparagraph
    10  (ii) of paragraph (i) as amended by section 3 of part OO of  chapter  55
    11  of  the  laws of 2019, paragraph (j) as amended by section 2 of part MMM
    12  of chapter 59 of the laws of 2019, are amended and a new  paragraph  (k)
    13  is added to read as follows:
    14    (ii)  official  documentation of the defendant's status as a victim of
    15  trafficking, compelling prostitution or trafficking in  persons  at  the
    16  time  of  the  offense  from a federal, state or local government agency
    17  shall create a presumption that the  defendant's  participation  in  the
    18  offense was a result of having been a victim of sex trafficking, compel-
    19  ling  prostitution  or trafficking in persons, but shall not be required
    20  for granting a motion under this paragraph; [or]
    21    (j) The judgment is a conviction for a class A or unclassified  misde-
    22  meanor  entered prior to the effective date of this paragraph and satis-
    23  fies the ground prescribed in paragraph (h) of this subdivision.   There
    24  shall  be  a rebuttable presumption that a conviction by plea to such an
    25  offense was not knowing, voluntary and  intelligent,  based  on  ongoing
    26  collateral  consequences,  including  potential  or  actual  immigration
    27  consequences, and  there  shall  be  a  rebuttable  presumption  that  a
    28  conviction  by  verdict  constitutes  cruel and unusual punishment under
    29  section five of article one of the  state  constitution  based  on  such
    30  consequences[.]; or
    31    (k)  The  judgment  occurred prior to the effective date of this para-
    32  graph and is a conviction for an offense as defined by section 221.05 or
    33  221.10 of the penal law as in effect prior to the effective date of this
    34  paragraph in which case the court shall grant the motion.
    35    § 4. Subdivision 6 of section 440.10 of the criminal procedure law, as
    36  added by chapter 332 of the laws of 2010, is amended to read as follows:
    37    6. If the court grants a motion under paragraph (i) or  paragraph  (k)
    38  of  subdivision  one  of  this  section, it must vacate the judgment and
    39  dismiss the accusatory instrument, and may take such  additional  action
    40  as is appropriate in the circumstances.
    41    §  5. Paragraph (k) of subdivision 3 of section 160.50 of the criminal
    42  procedure law, as added by chapter 835 of the laws of 1977 and as relet-
    43  tered by chapter 192 of the laws of 1980, is amended to read as follows:
    44    (k) [(i)] The accusatory instrument alleged a  violation  of  [article
    45  two  hundred  twenty  or  section  240.36 of the penal law, prior to the
    46  taking effect of article two hundred twenty-one of the penal law,  or  a
    47  violation  of  article two hundred twenty-one of the penal law; (ii) the
    48  sole controlled substance involved is marijuana;  (iii)  the  conviction
    49  was  only  for  a violation or violations; and (iv) at least three years
    50  have passed since the offense occurred.]:
    51    (i) article two hundred twenty or section  240.36  of  the  penal  law
    52  prior  to  the  effective  date of article two hundred twenty-one of the
    53  penal law, and the sole controlled substance involved was marihuana  and
    54  the conviction was only for a violation or violations; or

        S. 6579--A                          3

     1    (ii)  section 221.05 or 221.10 of the penal law prior to the effective
     2  date of the chapter of laws of two thousand nineteen that  amended  this
     3  section; or
     4    (iii) section 221.05 or 221.10 of the penal law.
     5    No  defendant  shall be required or permitted to waive eligibility for
     6  sealing pursuant to this paragraph as part of a plea of guilty, sentence
     7  or any agreement related to a conviction  for  a  violation  of  section
     8  221.05  or  section 221.10 of the penal law and any such waiver shall be
     9  deemed void and wholly unenforceable.
    10    § 6. Section 1.20 of the criminal procedure law is amended by adding a
    11  new subdivision 45 to read as follows:
    12    45. "Expunge" means, where an  arrest  and  any  enforcement  activity
    13  connected with that arrest, including prosecution and any disposition in
    14  any  New  York  state  court,  is  deemed  a  nullity and the accused is
    15  restored, in contemplation of the law, to  the  status  such  individual
    16  occupied before the arrest, prosecution and/or disposition; that records
    17  of  such  arrest,  prosecution  and/or  disposition  shall  be marked as
    18  expunged or shall be destroyed as set forth in section  160.50  of  this
    19  chapter.  Neither the arrest nor prosecution and/or disposition, if any,
    20  of a matter deemed a nullity shall operate as a disqualification of  any
    21  person  so  accused  to pursue or engage in any lawful activity, occupa-
    22  tion, profession or  calling.  Except  where  specifically  required  or
    23  permitted by statute or upon specific authorization of a superior court,
    24  no  such  person  shall be required to divulge information pertaining to
    25  the arrest, prosecution and/or disposition of such a matter.
    26    § 7. Section 160.50 of the criminal procedure law is amended by adding
    27  a new subdivision 5 to read as follows:
    28    5. (a) Expungement of  certain  marihuana-related  records.  Where  an
    29  accusatory  instrument  alleged an offense described in paragraph (k) of
    30  subdivision three of this section, such count or counts of the accusato-
    31  ry instrument in such criminal action or proceeding shall, on the effec-
    32  tive date of this paragraph, in accordance with the provisions  of  this
    33  paragraph,  be  vacated  and dismissed, and all records of such count or
    34  counts and, in the absence of any  other  valid  count  or  counts,  all
    35  records  of such action or proceeding shall be expunged, as described in
    36  subdivision forty-five of section 1.20 of this chapter, and  the  matter
    37  shall  be  considered  terminated  in  favor of the accused and deemed a
    38  nullity, having been rendered by this paragraph legally invalid.
    39    (b) Duties of certain state officials and  law  enforcement  agencies.
    40  Commencing upon the effective date of this paragraph:
    41    (i)  the  chief  administrator of the courts shall promptly notify the
    42  commissioner of the division of criminal justice services and the  heads
    43  of all appropriate police departments and other law enforcement agencies
    44  of all counts that have been vacated and dismissed pursuant to paragraph
    45  (a)  of  this  subdivision  and  that, in the absence of any other valid
    46  count or counts, all records of  such  action  or  proceeding  shall  be
    47  expunged  and  the matter shall be considered terminated in favor of the
    48  accused and deemed a nullity, having been rendered legally invalid. Upon
    49  receipt of notification of such vacatur, dismissal and expungement,  all
    50  records  relating  to  such  count  or counts, or the criminal action or
    51  proceeding, as the case may be, shall be marked as expunged by conspicu-
    52  ously indicating on the face of the record and on each page  or  at  the
    53  beginning  of  the digitized file of the record that the record has been
    54  designated as expunged. Upon the written request of the individual whose
    55  case has been expunged or their designated agent, such records shall  be
    56  destroyed.  Such  records  and papers shall not be made available to any

        S. 6579--A                          4

     1  person, except the individual whose  case  has  been  expunged  or  such
     2  person's designated agent; and
     3    (ii)  where  automatic  vacatur, dismissal, and expungement, including
     4  record destruction if requested, is required by this subdivision but any
     5  record of the court system in this state has not  yet  been  updated  to
     6  reflect  same  (A)  notwithstanding any other provision of law except as
     7  provided in paragraph (d) of subdivision one of this section  and  para-
     8  graph  (e)  of subdivision four of section eight hundred thirty-seven of
     9  the executive law: (1) when the division of  criminal  justice  services
    10  conducts  a  search of its criminal history records, maintained pursuant
    11  to subdivision six of section eight hundred thirty-seven of  the  execu-
    12  tive  law,  and returns a report thereon, all references to a conviction
    13  for an offense described in paragraph (k) of subdivision three  of  this
    14  section  shall  be excluded from such report; and (2) the chief adminis-
    15  trator of the courts shall develop and promulgate rules as may be neces-
    16  sary to ensure that no written or electronic report of a criminal histo-
    17  ry record  search  conducted  by  the  office  of  court  administration
    18  contains  information  relating to a conviction for an offense described
    19  in paragraph (k) of subdivision three of this  section;  and  (B)  where
    20  court  records  relevant  to  such matter cannot be located or have been
    21  destroyed, and a person or the person's attorney presents to  an  appro-
    22  priate  court  employee a fingerprint record of the New York state divi-
    23  sion of criminal justice services, or a  copy  of  a  court  disposition
    24  record  or  other relevant court record, which indicates that a criminal
    25  action or proceeding against such person was terminated by conviction of
    26  an offense described in paragraph  (k)  of  subdivision  three  of  this
    27  section,  then  promptly, and in any event within thirty days after such
    28  notice to such court employee, the chief administrator of the courts  or
    29  his  or  her  designee  shall  assure  that such vacatur, dismissal, and
    30  expungement,  including  record  destruction  if  requested,  have  been
    31  completed in accordance with subparagraph (i) of this paragraph.
    32    (c)  Vacatur,  dismissal and expungement as set forth in this subdivi-
    33  sion is without prejudice to any person or such person's attorney  seek-
    34  ing  further relief pursuant to article four hundred forty of this chap-
    35  ter or any other law. Nothing in this section is intended  or  shall  be
    36  interpreted to diminish or abrogate any right or remedy otherwise avail-
    37  able to any person.
    38    (d)  The office of court administration, in conjunction with the divi-
    39  sion of criminal justice services, shall develop an affirmative informa-
    40  tion campaign and widely disseminate to the public, through its website,
    41  public service announcements and other means, in multiple languages  and
    42  through  multiple outlets, information concerning the expungement, vaca-
    43  tur and resentencing of marihuana convictions established by the chapter
    44  of the laws of two thousand nineteen that added this paragraph,  includ-
    45  ing,  but  not  limited  to,  the  automatic expungement of certain past
    46  convictions, the means by which an individual  may  file  a  motion  for
    47  vacatur,  dismissal and expungement of certain past convictions, and the
    48  impact of such changes on such person's criminal history records.
    49    § 8. Subdivision 8 of section 1399-n of  the  public  health  law,  as
    50  amended  by  chapter  13  of  the  laws  of  2003, is amended to read as
    51  follows:
    52    8. "Smoking" means the burning of a lighted cigar, cigarette, pipe  or
    53  any  other  matter  or  substance which contains tobacco or marihuana as
    54  defined in section thirty-three hundred two of this chapter.
    55    § 9. This act shall take effect on the thirtieth day  after  it  shall
    56  have become a law.
feedback