On March 31, 2021, New York’s Governor Cuomo signed the Marijuana Regulation and Taxation Act, (“MRTA,”) into law. The legislation establishes practices and procedures that will expand the State’s medical cannabis program. MRTA also legalizes the recreational use of marijuana in the state. See our recent article for the commercial implications of the MRTA for the cannabis industry in New York.
In legalizing recreational marijuana, the new legislation also completely revised the sections of the Penal Law concerning marijuana. In addition to revising the sections of the Penal Law concerning marijuana, MRTA made it so that any prior conviction for a marijuana offense that would not be a crime under the new Penal Law sections is eligible to be expunged.
Expunged means “erased” or “completely removed.” In other words, an expunged conviction is like it never happened.
The MRTA went on to add that any prior convictions for marijuana under the old Penal Law sections that are not eligible to be expunged, would be eligible to be appropriately reduced, and resentenced, under the new Penal Law Sections. Relief under the MRTA, by either having a prior conviction expunged, or reduced, is not automatic and will require the person seeking expungement or reduction to follow certain procedures with the courts. The attorneys at Rosenbaum & Taylor, P.C. can help.
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Impact of Marijuana Regulation and Taxation Act on Marijuana Convictions in New York
At Rosenbaum & Taylor, P.C., our experienced attorneys are here to help clients have their criminal convictions expunged, or reduced, and take advantage of New York passing the Marijuana Regulation and Taxation Act. Lately, many calls with prospective clients sound something like this:
“I was convicted of possession of marijuana years ago when the police found marijuana in a car I was riding in. Since then, I haven’t been in any trouble, but that conviction is haunting me. Every job I apply for, apartment I apply for, loan I apply for, asks whether or not I have been convicted of a crime and I have, thanks to my marijuana conviction. I heard that marijuana is now legal in New York now and that they are forgiving all the old convictions. Is that true? What does that really mean?”
For many New Yorkers there is an all too common theme with marijuana convictions. Between possessing small amounts of marijuana in public, smoking marijuana in public, having marijuana in their private home or car, or selling small amounts of marijuana, many in New York have been convicted of criminal offenses related to marijuana. For many New Yorkers, a minor police encounter has had long lasting effects. Marijuana convictions have prevented them from getting jobs, student loans, apartments, firearm licenses, or generally moving on with their lives.
In New York, a single drug-related conviction can bar an applicant from public housing. One drug-related conviction can affect professional licensure for any career that requires approval from aboard. Notably, lawyers, doctors, and nurses can have their entire careers derailed by a conviction for a small amount of marijuana.
Marijuana convictions can also impact a person’s immigration status. Under federal law, two drug arrests are grounds for deportation, and, yes, marijuana arrests qualify for this harshest of penalties. Federal law also dictates that any person with a drug conviction is not eligible for federal student loans and, yes, here again, marijuana convictions qualify as drug convictions.
Additionally, New York Penal Law authorizes enhanced sentencing for persistent felony offenders. Under New York Penal law, when an individual has been convicted of multiple felonies, at the discretion of the judge, upon a subsequent conviction, the individual can be sentenced to a much harsher sentence, including a sentence that can range from a set number of years to life.
Felony marijuana convictions can be considered by judges when deciding to sentence an individual to these harsher penalties. What is worse is that the statistics show that marijuana offense enforcement in New York State varies widely based on race. A study by John Jay College of Criminal Justice, showed that in 2017, 18,241 people were arrested in New York City for misdemeanor marijuana possession.
The study goes on to read that for every Caucasian person arrested for misdemeanor marijuana possession in New York City, 5 Hispanics were arrested and 8.1 Black people were arrested. According to the NYPD’s own arrest numbers, Black and Latino New Yorkers combined to make up 94 percent of marijuana-related arrests in 2020. In the first quarter of 2021 alone, of the 163 marijuana-related arrests in New York City, 148 were African American and Hispanic and only 6 were Caucasian.
Whatever anyone makes of those numbers, the fact remains that numerous New Yorkers have been negatively affected by marijuana-related convictions. The new law allows for the expunging and/or reduction of certain convictions. In essence, the expunging of a conviction renders that conviction null, as if it never happened.
The attorneys at Rosenbaum & Taylor, P.C. are ready to help those who have convictions on their records that can be expunged or reduced. The attorneys at Rosenbaum & Taylor, P.C. are not only well versed in the new law but are also very familiar with the Court system and know how to get things done.
With the passage of the Marijuana Regulation and Taxation Act (“MRTA”), the New York State Legislature has taken the first step in giving these convicted New Yorkers their lives back.
What Does Legalized Recreational Marijuana Use Mean?
According to NYPD, there will be sweeping changes to the way marijuana is policed in light of the passage of the MRTA. The NYPD has indicated that smoking marijuana in public spaces where smoking tobacco is legal is not a basis for an approach, stop, or summons. This means that, basically, if you are in a place where you are allowed to smoke a cigarette, you can smoke a marijuana joint. Therefore, inside your car (assuming you are not driving) is okay, inside a bar or restaurant is not.
The NYPD also indicates that the smell of marijuana alone is no longer probable cause for a vehicle search for contraband; however, it can be used as the basis for a Driving While Intoxicated stop and investigation. Additionally, the NYPD does not have the jurisdiction to arrest anyone in possession of fewer than three ounces of marijuana; yet, eventually, the NYPD expects that they will be able to issue a civil summons to an individual under 21 in possession of marijuana.
As for the sale of marijuana, hand-to-hand sales are still illegal. That said, according to the NYPD, exchanges of less than three ounces of marijuana without exchanging payment is not a sale and thus, is legal.
What Offenses Will be Expunged or Reduced?
In revising the marijuana sections of the Penal Law, the MRTA has effectively taken out the entirety of the marijuana sections of the Penal Law, replacing the marijuana portions with brand-new sections.
The old Penal Law separated marijuana offenses into three basic categories. These categories were: simple possession of marijuana, possession of marijuana that is open to the public, and the sale of marijuana. Under the old Penal Law sections, simple possession or being found in possession of approximately .88 ounces of marijuana was a crime. Simple possession included marijuana that was not readily visible, such as marijuana found in a person’s home, hotel room, bookbag, purse, pocket, or car.
Similarly, possession of marijuana open to the public criminalized possessing marijuana, but required that the marijuana be visible and was typically reserved for New Yorkers smoking marijuana in public. A person smoking marijuana in public could be charged for any amount of marijuana. As for the sale of marijuana, the sale of any amount of marijuana was a criminal offense.
The new Penal Law section deals with marijuana in four different situations. These situations include possession of marijuana outside of the home, possession of marijuana in the home, growing marijuana, and the unlicensed sale of marijuana. With the new Penal Law sections, the MRTA has made it legal to possess up to three ounces of marijuana or twenty-four grams of concentrated marijuana outside of the home.
Additionally, the new Penal Law sections have made it legal to possess up to five pounds of marijuana inside the home and to grow a limited number of marijuana plants within the home. As for the unlicensed sale of marijuana, the new Penal Law sections created by the MRTA provide that a ticket may be issued for the unlicensed sale of fewer than three ounces of marijuana, to anyone.
The MRTA under the new Penal Law Sections makes the unlicensed sale of more than three ounces of marijuana or twenty-four ounces of marijuana a criminal offense. The new Penal Law also indicates that the unlicensed sale of any amount of marijuana to a person known to be under the age of 21 is a criminal offense.
The MRTA, also reads that any marijuana offense that would not be a crime under the new marijuana sections can be expunged. For instance, a person convicted under the old marijuana Penal Law sections, for possession of two ounces of marijuana was convicted of a Class A Misdemeanor. With the new Penal Law sections in place, this conviction would be eligible to be expunged.
In addition, under the MRTA, marijuana convictions that are not expunged under the new marijuana sections can be reduced, where eligible, to the appropriate offenses under the new marijuana sections. For instance, a person convicted of possession of eight ounces of marijuana in public under the old Penal Law sections would be a Class E Felony. Under the new Penal Law sections, this conviction would be eligible to be reduced to a misdemeanor.
Accordingly, deciding which marijuana cases are eligible to be expunged or reduced under the MRTA will be done on a case-by-case analysis. In analyzing each case, the underlying facts of the conviction will be paramount. Where the marijuana was found, how the marijuana was found, how much marijuana was found, the ages of the individuals involved in a sale of marijuana, the type of marijuana (be it marijuana or concentrated cannabis) are all elements that will be considered before any conviction is either expunged or reduced.
What Does an Expunged Conviction Mean?
Many New Yorkers wonder if expunging or having their criminal convictions reduced “really matters” and the answer is yes, yes, yes. To be clear, MRTA, calls for the expungement of eligible offense, not sealing them. A sealed conviction is just that, sealed. When the State of New York seals a conviction, the record is such that it cannot be accessed by the public but is still accessible by law enforcement.
An expunged conviction on the other hand no longer exists. When the State of New York expunges a marijuana conviction the entire record of the conviction is destroyed. An expunged conviction functions as erasing the entire encounter. The arrest, conviction, and sentence are all erased, providing a clean slate.
Functionally, an expunged offense gives a person a new lease on life. With an offense expunged the answer to a question like, “have you ever been convicted of the expunged offense,” is a resounding no. There is no reporting of the expunged offense and no future employer, law enforcement agency, rental office, housing office, loan application, or another background check will be able to find, much less access, the expunged offense.
Contact the Experienced Lawyers at Rosenbaum & Taylor, P.C. for Reliable Legal Advice about Your Marijuana Convictions
Expunging marijuana charges from your record or having a conviction reduced provides an opportunity that many New Yorkers need to get their lives on track or to push them to new heights. Whether you are applying for housing, applying for student loans, applying for a firearm license, or applying for a new job, if you are looking for assistance in expunging marijuana charges from your criminal record or need assistance in having your prior convictions reduced, the experienced lawyers at Rosenbaum & Taylor, P.C., can help.
Read Part 1 on Understanding Cannabis in New York