Bill Text: NY S07927 | 2013-2014 | General Assembly | Introduced


Bill Title: De-criminalizes the personal possession of marijuana; relates to certain pleas; specifies requirements with respect to bills affecting the penal law; expands the duties of the division of criminal justice services.

Spectrum: Partisan Bill (Democrat 11-0)

Status: (Introduced - Dead) 2014-07-09 - REFERRED TO RULES [S07927 Detail]

Download: New_York-2013-S07927-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7927
                                   I N  S E N A T E
                                     July 9, 2014
                                      ___________
       Introduced  by Sens. SQUADRON, DILAN, ESPAILLAT, HOYLMAN, KRUEGER, MONT-
         GOMERY, PARKER, PERKINS, RIVERA -- read twice and ordered printed, and
         when printed to be committed to the Committee on Rules
       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;  to  amend  the  legislative law, in
         relation to specifying requirements with respect  to  bills  affecting
         the  penal  law;  to amend the executive law, in relation to expanding
         the duties of division of criminal justice  services;  and  to  repeal
         section 221.35 of the penal law relating to criminal sale of marihuana
         in the fifth degree
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. This act shall be known and may be cited as  the  "fairness
    2  and equity act".
    3    S  2.  Subdivisions 5 and 6 of section 1.05 of the penal law, subdivi-
    4  sion 5 as amended by chapter 612 of the laws of 1982 and  subdivision  6
    5  as  amended  by  chapter  98 of the laws of 2006, are amended to read as
    6  follows:
    7    5. To  provide  for  an  appropriate  public  response  to  particular
    8  offenses, including consideration of the consequences of the offense for
    9  the victim, including the victim's family, and the community; [and]
   10    6.  TO  ENSURE  THAT  LAWS  ARE ENFORCED EQUALLY AND FAIRLY AND DO NOT
   11  RESULT IN A DISPARATE IMPACT ON PEOPLE BECAUSE OF THEIR RACE AND ETHNIC-
   12  ITY; AND
   13    7. To insure  the  public  safety  by  preventing  the  commission  of
   14  offenses  through  the  deterrent influence of the sentences authorized,
   15  the rehabilitation of those convicted, the promotion of their successful
   16  and  productive  reentry  and  reintegration  into  society,  and  their
   17  confinement when required in the interests of public protection.
   18    S  3.  Section 221.05 of the penal law, as added by chapter 360 of the
   19  laws of 1977, is amended to read as follows:
   20  S 221.05 Unlawful possession of marihuana.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD15556-03-4
       S. 7927                             2
    1    A person is guilty of unlawful possession of marihuana when  he  know-
    2  ingly and unlawfully possesses marihuana.
    3    Unlawful  possession  of marihuana is a violation punishable only by a
    4  fine of not more than one hundred dollars. [However, where the defendant
    5  has previously been convicted of an offense defined in this  article  or
    6  article 220 of this chapter, committed within the three years immediate-
    7  ly  preceding  such violation, it shall be punishable (a) only by a fine
    8  of not more than two hundred dollars, if the  defendant  was  previously
    9  convicted of one such offense committed during such period, and (b) by a
   10  fine  of  not more than two hundred fifty dollars or a term of imprison-
   11  ment not in excess of fifteen days or both, if the defendant was  previ-
   12  ously convicted of two such offenses committed during such period.]
   13    S 4. Section 221.10 of the penal law, as amended by chapter 265 of the
   14  laws  of  1979,  subdivision  2  as amended by chapter 75 of the laws of
   15  1995, is amended to read as follows:
   16  S 221.10 Criminal possession of marihuana in the fifth degree.
   17    A person is guilty of criminal possession of marihuana  in  the  fifth
   18  degree when he knowingly and unlawfully possesses[:
   19    1.  marihuana  in a public place, as defined in section 240.00 of this
   20  chapter, and such marihuana is burning or open to public view; or
   21    2.] one  or  more  preparations,  compounds,  mixtures  or  substances
   22  containing  marihuana  and  the  preparations,  compounds,  mixtures  or
   23  substances are of an aggregate weight of more than twenty-five grams.
   24    Criminal possession of marihuana in the fifth  degree  is  a  class  B
   25  misdemeanor.
   26    S 5. Section 221.35 of the penal law is REPEALED.
   27    S  6.  Section 221.40 of the penal law, as added by chapter 360 of the
   28  laws of 1977, is amended to read as follows:
   29  S 221.40 Criminal sale of marihuana in the fourth degree.
   30    A person is guilty of criminal sale of marihuana in the fourth  degree
   31  when  he knowingly and unlawfully sells marihuana [except as provided in
   32  section 221.35 of this article] FOR CONSIDERATION.
   33    Criminal sale of marihuana in the fourth degree is a class A misdemea-
   34  nor.
   35    S 7. Subdivision 1 of section 170.56 of the criminal procedure law, as
   36  amended by chapter 360 of the laws  of  1977,  is  amended  to  read  as
   37  follows:
   38    1.  Upon or after arraignment in a local criminal court upon an infor-
   39  mation, a prosecutor's information or a misdemeanor complaint, where the
   40  sole  remaining  count  or  counts  charge  a violation or violations of
   41  section 221.05, 221.10, 221.15[, 221.35] or 221.40 of the penal law  and
   42  before the entry of a plea of guilty thereto or commencement of  a trial
   43  thereof,  the  court,  upon  motion  of  a defendant, may order that all
   44  proceedings be suspended and the action adjourned  in  contemplation  of
   45  dismissal,  or upon a finding that adjournment would not be necessary or
   46  appropriate and the setting forth in the record of the reasons for  such
   47  findings,  may  dismiss in furtherance of justice the accusatory instru-
   48  ment; provided, however, that the court may not order  such  adjournment
   49  in  contemplation  of dismissal or dismiss the accusatory instrument if:
   50  (a) the defendant  has  previously  been  granted  such  adjournment  in
   51  contemplation  of  dismissal,  or  (b) the defendant has previously been
   52  granted a dismissal under this section, or (c) the defendant has  previ-
   53  ously  been convicted of any offense involving controlled substances, or
   54  (d) the defendant has previously been  convicted  of  a  crime  and  the
   55  district  attorney  does not consent or (e) the defendant has previously
   56  been adjudicated a youthful offender on the basis of  any  act  or  acts
       S. 7927                             3
    1  involving  controlled  substances  and  the  district  attorney does not
    2  consent. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN THIS  SUBDIVISION,
    3  THE  COURT  MAY  ORDER  THAT ALL PROCEEDINGS BE SUSPENDED AND THE ACTION
    4  ADJOURNED  IN  CONTEMPLATION OF DISMISSAL BASED UPON A FINDING OF EXCEP-
    5  TIONAL CIRCUMSTANCES. FOR  PURPOSES  OF  THIS  SUBDIVISION,  EXCEPTIONAL
    6  CIRCUMSTANCES  EXIST WHEN, REGARDLESS OF THE ULTIMATE DISPOSITION OF THE
    7  CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKELY TO RESULT IN SEVERE COLLA-
    8  TERAL CONSEQUENCES, INCLUDING, BUT NOT  LIMITED  TO,  THOSE  THAT  COULD
    9  LEAVE A NONCITIZEN INADMISSIBLE OR DEPORTABLE FROM THE UNITED STATES.
   10    S 8. Section 210.46 of the criminal procedure law, as amended by chap-
   11  ter 360 of the laws of 1977, is amended to read as follows:
   12  S  210.46   Adjournment in contemplation of dismissal in marihuana cases
   13          in a superior court.
   14    Upon or after arraignment in a superior court upon an indictment where
   15  the sole remaining count or counts charge a violation or  violations  of
   16  section 221.05, 221.10, 221.15[, 221.35] or 221.40 of the penal law  and
   17  before  the entry of a plea of guilty thereto or commencement of a trial
   18  thereof, the court, upon motion of  a  defendant,  may  order  that  all
   19  proceedings  be  suspended  and the action adjourned in contemplation of
   20  dismissal or may dismiss the indictment in furtherance  of  justice,  in
   21  accordance with the provisions of section 170.56 of this chapter.
   22    S  9. Paragraphs (h) and (i) of subdivision 1 of section 440.10 of the
   23  criminal procedure law, paragraph (h) as amended and  paragraph  (i)  as
   24  added  by  chapter  332 of the laws of 2010, are amended and a new para-
   25  graph (j) is added to read as follows:
   26    (h) The judgment was obtained in violation of a right of the defendant
   27  under the constitution of this state or of the United States; [or]
   28    (i) The judgment is a conviction where the arresting charge was  under
   29  section  240.37 (loitering for the purpose of engaging in a prostitution
   30  offense, provided that the defendant was not alleged to be loitering for
   31  the purpose of patronizing a prostitute or  promoting  prostitution)  or
   32  230.00  (prostitution)  of  the  penal  law, and the defendant's partic-
   33  ipation in the offense was a result of having been a victim of sex traf-
   34  ficking under section 230.34 of the penal law or trafficking in  persons
   35  under  the Trafficking Victims Protection Act (United States Code, title
   36  22, chapter 78); provided that
   37    (i) a motion under this paragraph shall be made  with  due  diligence,
   38  after the defendant has ceased to be a victim of such trafficking or has
   39  sought  services  for victims of such trafficking, subject to reasonable
   40  concerns for the safety of the defendant, family members of the  defend-
   41  ant, or other victims of such trafficking that may be jeopardized by the
   42  bringing  of  such  motion,  or  for  other  reasons consistent with the
   43  purpose of this paragraph; and
   44    (ii) official documentation of the defendant's status as a  victim  of
   45  sex  trafficking  or  trafficking  in persons at the time of the offense
   46  from a federal, state or local government agency shall create a presump-
   47  tion that the defendant's participation in the offense was a  result  of
   48  having  been  a victim of sex trafficking or trafficking in persons, but
   49  shall not be required for granting a motion under this paragraph[.]; OR
   50    (J) THE JUDGMENT OCCURRED PRIOR TO THE EFFECTIVE DATE  OF  THIS  PARA-
   51  GRAPH AND IS A CONVICTION FOR:
   52    (I) AN OFFENSE AS DEFINED BY SECTION 221.10 OF THE PENAL LAW (CRIMINAL
   53  POSSESSION  OF MARIHUANA IN THE FIFTH DEGREE), AS IN EFFECT PRIOR TO THE
   54  EFFECTIVE DATE OF THIS PARAGRAPH, PROVIDED THAT THE  ACCUSATORY  INSTRU-
   55  MENT THAT UNDERLIES THE JUDGMENT DOES NOT INCLUDE AN ALLEGATION THAT THE
   56  DEFENDANT POSSESSED MORE THAN TWENTY-FIVE GRAMS OF MARIHUANA; OR
       S. 7927                             4
    1    (II)  AN  OFFENSE AS DEFINED BY FORMER SECTION 221.35 OF THE PENAL LAW
    2  (CRIMINAL SALE OF MARIHUANA IN THE FIFTH DEGREE).
    3    S  10.  Subdivision 6 of section 440.10 of the criminal procedure law,
    4  as added by chapter 332 of the laws of  2010,  is  amended  to  read  as
    5  follows:
    6    6.  If  the court grants a motion under paragraph (i) OR PARAGRAPH (J)
    7  of subdivision one of this section, it  must  vacate  the  judgment  and
    8  dismiss  the  accusatory instrument, and may take such additional action
    9  as is appropriate in the circumstances.
   10    S 11. Paragraphs (i), (j) and (k) of subdivision 3 of  section  160.50
   11  of  the criminal procedure law, paragraphs (i) and (j) as added by chap-
   12  ter 905 of the laws of 1977 and paragraph (k) as added by chapter 835 of
   13  the laws of 1977 and as relettered by chapter 192 of the laws  of  1980,
   14  are amended to read as follows:
   15    (i)  prior to the filing of an accusatory instrument in a local crimi-
   16  nal court against such person, the prosecutor elects  not  to  prosecute
   17  such  person.  In such event, the prosecutor shall serve a certification
   18  of such disposition upon the division of criminal justice  services  and
   19  upon  the appropriate police department or law enforcement agency which,
   20  upon receipt thereof, shall comply with  the  provisions  of  paragraphs
   21  (a),  (b),  (c)  and  (d) of subdivision one of this section in the same
   22  manner as is required thereunder with respect to an  order  of  a  court
   23  entered pursuant to said subdivision one[.]; OR
   24    (j)  following the arrest of such person, the arresting police agency,
   25  prior to the filing of an accusatory  instrument  in  a  local  criminal
   26  court  but subsequent to the forwarding of a copy of the fingerprints of
   27  such person to the division of criminal justice services, elects not  to
   28  proceed  further. In such event, the head of the arresting police agency
   29  shall serve a certification of such disposition  upon  the  division  of
   30  criminal justice services which, upon receipt thereof, shall comply with
   31  the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of
   32  this  section  in the same manner as is required thereunder with respect
   33  to an order of a court entered pursuant to said subdivision one[.]; OR
   34    (k) (i) The accusatory instrument alleged a violation of  article  two
   35  hundred  twenty  or section 240.36 of the penal law, prior to the taking
   36  effect of article  two  hundred  twenty-one  of  the  penal  law,  or  a
   37  violation  of  article two hundred twenty-one of the penal law; (ii) the
   38  sole  controlled  substance  involved  is  marijuana;  AND   (iii)   the
   39  conviction  was  only  for a violation or violations[; and (iv) at least
   40  three years have passed since the offense occurred].
   41    S 12. The legislative law is amended by adding a new section  52-a  to
   42  read as follows:
   43    S  52-A.  REQUIREMENT  WITH  RESPECT TO BILLS AFFECTING THE PENAL LAW.
   44  WHENEVER A COMMITTEE REPORTS A BILL FAVORABLY WHICH,  IF  PASSED,  WOULD
   45  INCREASE OR DECREASE THE PRETRIAL OR SENTENCED POPULATION OF CORRECTION-
   46  AL  FACILITIES IN THIS STATE, A MAJORITY OF THE COMMITTEE MEMBERS VOTING
   47  MAY REQUEST THAT A RACIAL AND ETHNIC IMPACT STATEMENT BE  PREPARED.  THE
   48  LEGISLATURE  SHALL  BY  CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
   49  PRESCRIBE RULES REQUIRING RACIAL AND ETHNIC IMPACT STATEMENTS TO  ACCOM-
   50  PANY, ON A SEPARATE FORM, BILLS AND AMENDMENTS TO BILLS AFTER SUCH BILLS
   51  HAVE  BEEN  REPORTED FROM COMMITTEE. RACIAL AND ETHNIC IMPACT STATEMENTS
   52  SHALL BE PREPARED BEFORE THE BILL IS CONSIDERED FOR FINAL PASSAGE.   THE
   53  STATEMENT  SHALL INDICATE WHETHER THE BILL WOULD HAVE A DISPARATE IMPACT
   54  ON THE RACIAL AND ETHNIC COMPOSITION OF THE CORRECTIONAL FACILITY  POPU-
   55  LATION  AND  AN EXPLANATION OF THAT IMPACT. ANY RACIAL AND ETHNIC IMPACT
   56  STATEMENT PRINTED WITH OR PREPARED FOR A BILL IS SOLELY FOR THE  PURPOSE
       S. 7927                             5
    1  OF  INFORMATION, SUMMARIZATION AND EXPLANATION FOR MEMBERS OF THE LEGIS-
    2  LATURE AND SHALL NOT BE CONSTRUED TO REPRESENT THE INTENT OF THE  LEGIS-
    3  LATURE OR EITHER CHAMBER THEREOF FOR ANY PURPOSE. EACH RACIAL AND ETHNIC
    4  IMPACT  STATEMENT  SHALL  BEAR  THE FOLLOWING DISCLAIMER: "THE FOLLOWING
    5  RACIAL AND ETHNIC IMPACT STATEMENT IS PREPARED FOR THE  BENEFIT  OF  THE
    6  MEMBERS  OF  THE LEGISLATURE, SOLELY FOR PURPOSES OF INFORMATION, SUMMA-
    7  RIZATION AND EXPLANATION AND DOES NOT REPRESENT THE INTENT OF THE LEGIS-
    8  LATURE OR EITHER CHAMBER THEREOF FOR ANY PURPOSE."
    9    S 13. Paragraph (f) of subdivision 4 of section 837 of  the  executive
   10  law, as amended by chapter 169 of the laws of 1994, is amended and a new
   11  paragraph (g) is added to read as follows:
   12    (f)  [Accomplish]  ACCOMPLISH all of the functions, powers, and duties
   13  set forth in paragraphs (a), (b), (c) and (d) of this  subdivision  with
   14  respect  to  the  processing  and disposition of cases involving violent
   15  felony offenses specified in subdivision one of  section  70.02  of  the
   16  penal law[.]; AND
   17    (G)  ACCOMPLISH  ALL OF THE FUNCTIONS, POWERS, AND DUTIES SET FORTH IN
   18  PARAGRAPHS (A), (B), (C) AND (D) OF THIS SUBDIVISION WITH RESPECT TO ALL
   19  CHAPTERS OF LAW RESULTING FROM LEGISLATIVE BILLS THAT HAVE BEEN  SUBJECT
   20  TO  THE  PROVISIONS  OF  SECTION FIFTY-TWO-A OF THE LEGISLATIVE LAW. THE
   21  DIVISION SHALL PRESENT TO THE GOVERNOR, THE TEMPORARY PRESIDENT  OF  THE
   22  SENATE,  THE  MINORITY LEADER OF THE SENATE, THE SPEAKER OF THE ASSEMBLY
   23  AND THE MINORITY LEADER OF THE ASSEMBLY AN ANNUAL REPORT CONTAINING  THE
   24  STATISTICS AND OTHER INFORMATION RELEVANT TO THIS SUBDIVISION.
   25    S  14.  This  act  shall  take effect on the one hundred eightieth day
   26  after it shall have become a law.
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