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NY prepares to expunge some marijuana arrests in decriminalization measure

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Cannabis plant Photo Credit: Getty Images/WIN-Initiative RM/WIN-Initiative

ALBANY — A measure passed by the State Legislature would strike past and future misdemeanor charges for marijuana possession, clearing criminal records for more than 24,000 people, including 2,000 who were charged on Long Island, according to new state data.

The state Division of Criminal Justice Services says 126,136 Class B misdemeanors charged statewide would be sealed from the public, employers, colleges and lending institutions, and punishable by fines. Another 76,053 violation convictions that had been unsealed by the courts would be sealed. 

The vast majority of people who would have their charges sealed also had additional charges that would not be sealed.

Many of the records would be destroyed, or expunged, under the measure, and New Yorkers could order records of their misdemeanor possession convictions to be destroyed. A public information campaign required by the legislation would alert individuals how to order their criminal convictions to be destroyed.

Gov. Andrew M. Cuomo has not signed the measure into law. Cuomo proposed similar legislation in his budget this year, and is expected to sign the bill.

The bill was a last-minute fallback in the closing days of the session after legislation to legalize marijuana failed in the Senate. Both measures sought to reduce the impact of convictions for possession of small amounts of marijuana that made it more difficult for youths — often racial minorities — to apply to college and for financial aid,land jobs and apply for mortgages.

“Communities of color have been disproportionately impacted by laws governing marijuana for far too long, and it has to end,” Cuomo said in June.

The measure would change the Class B misdemeanor of possession of up to 2 ounces of marijuana — enough for about 30 to 60 joints — to a violation. The misdemeanor criminal charges carry penalties of up to three months in jail. The typical violation conviction carries a fine of $50 to $100.

But state agencies are scrambling to determine what the measure requires and how to destroy or seal so many records.

One issue under discussion is whether the measure calls for records to be expunged or sealed.

Records that are expunged are destroyed, so it’s as if the conviction never occurred, according to the state Division of Criminal Justice Services.

Sealed records can’t be seen by the public. But police, prosecutors and judges, through a court order, can see the records in deciding whether to make an arrest, and in plea bargaining.

The Division of Criminal Justice Services would use a computer program to expunge or seal records, according to the division, which compiles records of arrests involving fingerprinting.

“The agency is reviewing the specific record requirements and existing processes to determine the technology modifications that will be necessary, as well as developing a plan to address the agency’s other new responsibilities,” Division of Criminal Justice Services spokeswoman Janine Kava said.

Police and prosecutors also foresee complications.

For example, most “rap sheets” have paper records of Class B marijuana arrests in defendants’ files that won’t necessarily be destroyed because the law doesn’t appear to require all files to be searched for references to the misdemeanors. Although there may be a reference to the Class B misdemeanors still in court files, prior conviction can’t be used against a defendant, either.

“What is laid out in the legislation is a very involved legal process,” said Lucian Chalfen, spokesman for the state Office of Court Administration.

“We do not have a method for expunging of criminal records,” he said. “That would have to be developed in conjunction with DCJS. We are talking about hundreds of thousands, if not more than a million criminal records to be removed from our database.”

But many in law enforcement said they support the measure.

“The way you can help people is relieving the burden of prior criminal history if they are turning their lives around,” said Albany County District Attorney David Soares, president of the District Attorneys Association of New York.

In Albany County, where he has been district attorney since 2005, Soares has provided a laboratory for the measure. For more than a year, he has stopped prosecuting Class B misdemeanors, although police agencies in the county continue to charge people with the crime.

“It’s great for us,” Soares said. “It takes a tremendous amount of resources in the New York State lab to prosecute those cases … My exception is, if you are smoking in public or behind the wheel of a car, all bets are off … But I am saving tons of resources.”

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