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.