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Tuesday, June 12, 2012

New York Moves to Decriminalize Marijuana

There has been a lot of media attention to Governor Cuomo's efforts to decriminalize marijuana possession.  First I want to clarify that marijuana possession under 25 grams is already decriminalized in New York so this attention is a bit misleading.  Simple marijuana possession in New York is a violation and NOT a crime and a conviction would not mean you had a criminal record.  It is however currently a crime under Penal Law Section 221.10 to possess more than 25 grams of marijuana or to possess marijuana that is "burning or open to public view"

The new push does not seek to allow marijuana to be smoked in public.  It seeks to reduce marijuana that is open to public view from a misdemeanor to a violation.  When is the marijuana open to public view you may wonder?  Typically this is charged during the purchase of marijuana when the observing officer sees hands touch and then upon subsequent recovery of marijuana they claim it was open to public view.  The other situation is where the officers ask a suspect to empty their pockets and then  when marijuana is pulled out they charge that it is open to public view.  Neither which is an aggravating fact that should increase the seriousness of the offense to a crime.  Part of the push to decriminalize this offense is to reduce the number of bad searches and stop and frisks by the NYPD.

While most prosecutor's offices treat this as a non-criminal offense anyway, there are still prosecutors who aggressively prosecute these cases.  I just handled a case in New York County where the ADA handling the case was insisting on a plea to the charge and two weeks in jail.  Ultimately after speaking to the supervisor, a more reasonable non-criminal resolution was agreed to. When I tried to explain the push to decriminalize this offense the ADA thought I was crazy.  Perhaps she should read the editorial of her boss, Cy Vance,

The push is to get the change in the law passed before the end of the current legislative session in the next couple of weeks.  Given the support of Mayor Bloomberg, Governor Cuomo and many of the New York District Attorneys, I expect it will be passed.

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