The measure was this year’s compromise among Democrats in New York who couldn’t coalesce around a measure to legalize the drug before the end of the legislative session in June.

By Dan M. Clark

Photo: Mitch M/

Possessing small amounts of marijuana will no longer appear on someone’s criminal record in New York, and past offenders could have any record of that crime erased, after Gov. Andrew Cuomo signed a bill to decriminalize the drug Monday morning.

The new law, which takes effect in late August, will reduce the charge for possessing less than two ounces of marijuana from a misdemeanor to a violation and lower fines that come with it.

It will also allow those convicted of possessing small amounts of the drug to have their records expunged, which criminal justice advocates have long called for as part of legalizing marijuana, Cuomo said the same in a statement on the law Monday.

“By providing individuals who have suffered the consequences of an unfair marijuana conviction with a path to have their records expunged and by reducing draconian penalties, we are taking a critical step forward in addressing a broken and discriminatory criminal justice process,” Cuomo said.

The measure was this year’s compromise among Democrats in New York who couldn’t coalesce around a measure to legalize the drug before the end of the legislative session in June. A bill floated to lawmakers that would have established regulations and a tax structure for marijuana was still met with concerns from hesitant Democrats, despite several amendments.

Senate Majority Leader Andrea Stewart-Cousins, D-Westchester, said in a statement Monday that efforts to fully legalize the drug would start back up when lawmakers reconvene in Albany in January. The Senate didn’t have the votes to pass the bill this year.

“Decriminalizing marijuana is an essential part of reforming our state’s broken justice system. For too long, communities of color have been disproportionately targeted and negatively impacted,” Stewart-Cousins said. “The Senate Democratic Majority will continue our efforts for full legalization and regulation of marijuana, and today’s decriminalization is a good first step.”

The part of the law that allows past offenders to have their convictions expunged won’t apply automatically, said Steven Epstein, name partner at Barket Epstein Kearon Aldea & LoTurco in Nassau County.

Epstein said if someone is currently charged with possessing a small amount of marijuana, but hasn’t been convicted, their case will automatically be dismissed. But if someone already has a conviction on those charges, they’ll have to file a motion to have their records expunged.

“The prior convictions—the convictions that were in effect prior to the effective date of the statute—my reading of the statute is that you’re going to have to file a motion,” said Epstein, whose firm will be providing that service.

Once expunged, those convictions will no longer show up on a search of someone’s criminal history. Possession of marijuana was previously a class B misdemeanor, depending on the amount of the drug.

“Decriminalizing marijuana and expunging records for those with low level offenses will go a long way towards helping our communities, and especially people of color, who have been devastated by them,” said Assembly Speaker Carl Heastie, D-Bronx. “By removing the barriers and stigma that come with these records, we clear the path for many New Yorkers to find a job, housing and go on to live successful and productive lives.”

Fines for possession will also be reduced by the law. The fine for possessing less than an ounce of the drug will be capped at $50. The fine for possessing between one and two ounces of marijuana, or marijuana-related substances, will not exceed $200.

Those changes will take effect 30 days from Monday, according to the legislation.

Public defenders warned Monday after the bill was signed that, while decriminalization may be a step forward for criminal justice reform in regards to the drug, there will still be real consequences for individuals on parole or probation and undocumented immigrants found in possession of marijuana.

Emma Goodman, staff attorney with the Criminal Defense Practice’s special litigation unit at The Legal Aid Society, said the bill won’t address the disparate enforcement of marijuana possession laws in communities largely populated by people of color.

“Under this statute, for basic marijuana possession, our clients will continue to face parole and probation violations, continue to live in fear of immigration detention and deportation, and continue to be at risk of being separated from their family by an adult or child protective agency,” Goodman said.

Full legalization of the drug was met with opposition from several different fronts this year, after Democrats previously remained optimistic on the issue. Those involved with discussions on the measure said there were a host of different concerns that couldn’t be resolved before they were scheduled to leave Albany for the year last month.

Chief among them, according to lawmakers, was where the tax revenue generated from sales of the drug would go. While many agreed those funds should be reinvested into communities disproportionately impacted by the state’s drug laws, there was disagreement on the amount and how that would be decided.

Members of law enforcement, including prosecutors, were also concerned about road safety in the wake of marijuana legalization. There’s currently no mainstream method to test how intoxicated someone is by marijuana during a traffic stop, and few officers in New York are trained on how to recognize when someone has used the drug.

At the same time, advocates for legalizing marijuana were concerned in the final days of this year’s legislative session that the decriminalization bill signed Monday would stifle future efforts on the issue. Lawmakers have said they expect to continue discussions in January.

( from The New York Law Journal )

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