Full Scale Cannabis Legalization Fails in New York, but Legislature Approves Significant Decriminalization Measures

Although efforts to legalize cannabis for adult recreational use failed to win majority support prior to the end of the legislative session, both the New York State Assembly and New York State Senate have approved a significant decriminalization bill.  The bill, which Governor Andrew Cuomo has said he will sign, generally (1) reduces penalties for small-scale cannabis possession and (2) provides for automatic expungement of certain low-level cannabis related criminal records. The bill includes the following key measures:

  • Possession of less than two ounces of cannabis will be classified as a violation. Under existing law, possession of between one and two ounces is classified as a misdemeanor.
  • Public use will be classified as a violation, rather than a misdemeanor as it is classified under existing law.
  • The fine for possession of less than one ounce will be capped at $50. The fine for possession of between one and two ounces will be capped at $200.
  • Imprisonment can no longer be imposed for possession of less than two ounces.
  • At the request of the defendant, the court in which that person was convicted must vacate a judgment of conviction and dismiss the charges relating to certain prior cannabis-related offenses, including convictions for possession of less than 25 grams and for public use.
  • Records of certain prior cannabis-related charges shall be automatically expunged, including convictions for possession of less than 25 grams and for public use.

As noted in our article dated May 23, 2019, New York law currently does not provide a mechanism for expungement of criminal records.  The new bill introduces a definition of “expungement” to the New York Criminal Procedure law, which generally provides that:  (1) any arrest, enforcement activity, prosecution and disposition in any New York State court will be deemed a “nullity” and the individual will be restored to the status occupied prior to the arrest, prosecution and/or disposition; (2) records of the arrest, prosecution and/or disposition shall be marked as “expunged” or destroyed; and (3) no individual shall be required to divulge information pertaining to an expunged proceeding.  Commentators have observed that the bill’s expungement provision will, in practice, mean that relevant convictions will no longer show up on criminal history searches.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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