NY Marijuana Law Reform and New York City Marijuana Policy

In response to the overzealous enforcement of marijuana law in New York City, a bill has been proposed in the New York State legislature that would make the "public" possession of 25 grams or less of marijuana a violation, and not the misdemeanor it currently is. Most people caught with 25 grams or less are charged with Unlawful Possession of Marijuana. However, if you are caught smoking in public or, displaying 25 grams or less of marijuana in public, the charge becomes Criminal Possession of Marijuana 5th Degree which is a misdemeanor, and far more serious than a UPM (Unlawful Possession of Marijuana).

Most cops are pretty "cool" about UPM offenders. They take the weed and give you a ticket directing you to appear in court. Then you are free to go back to your party or meeting or wherever you are going that you want to be high for. But if you are in New York City, the cops are far less tolerant of marijuana offenders than some of the good old boys in Upstate New York. In fact, the NYPD has been intentionally violating the constitutional rights of citizens in a calculated effort to bust pot smokers. They are using dirty tricks to force people who possess less than 25 grams of pot to display it in public. And as I noted before, the public display of less than 25 grams is a misdemeanor, a crime. So instead of these folks getting an appearance ticket, they get arrested and get the full work up including mug shot, prints,and maybe jail before they see a judge.

I guess the cops in NYC are forcing people to empty their pockets on the street without good reason. And, if a person has weed and they are forced to pull it out of their pocket in public, then I guess technically they are guilty of the misdemeanor despite never having had any intention of publicly displaying their stash. The problem is that most of these folks had no legal obligation to cooperate in the first place. Even those who know their so called "rights" are no match for the cop who insists that refusal to cooperate will only make matters worse.

Do you think you know your rights with regard to police encounters? The police are forbidden by the Constitution to approach you and talk to you for no reason. There simply has to be a basis to approach and  that basis must somehow have a nexus to a reasonable suspicion of criminal behavior. What I should say is that the cops are forbidden to "seize" a person with respect to the 4th amendment. So what is a seizure? A seizure can be described as any citizen encounter with law enforcement during which the citizen did not feel that he or she is free to leave.  I think that aptly describes just about any citizen encounter with law enforcement. I mean really, you think you can just walk away?

With regard to the NYPD problem, there is no way they can tell someone has a bag of weed in their pocket by looking. What they are doing is targeting innocent people and shaking them down so they can arrest them. And it costs the city 75 million a year.

The bill sponsor's press release indicates that 54,000 people in New York State were arrested for marijuana possession in 2010. I don't think that number includes UPM offenders because no one is really arrested for UPM and many of those cases are dismissed. According to the release, 50,000 of  NY's marijuana arrests occurred in NYC. NYC contains about 40% of the state population. Yes, I would say that something is very wrong.



Here is an abstract of the proposed legislation:

Bi-partisan legislation was introduced this week in Albany to address the fiscal and human costs of the meteoric rise in arrests for marijuana possession inNew York. Senate Bill 5187, introduced by Senator Mark Grisanti (R-Buffalo), and Assembly Bill 7620, introduced by Assemblyman Hakeem Jeffries (D, WFP – Brooklyn) seeks to save taxpayer dollars, protect against illegal searches, and reduce unwarranted racial disparities in arrests by clarifying the law and standardizing penalties for marijuana possession offenses.
In 2010, over 54,000 people were arrested in NY for possessing small amounts of marijuana – over 50,000 of those arrests occurred in New York City alone. A major study released in March by the Drug Policy Alliance found that each arrest for simple marijuana possession, conservatively estimated, costs between $1,000 – $2,000 – thus New York taxpayers are spending about $75 million every year on arresting people for possessing small amounts of marijuana.
What many New Yorkers don’t know is that the state decriminalized marijuana possession over thirty years ago – making private possession of 25 grams or less of marijuana (about 7/8 of an ounce) a violation punishable by a $100 fine; possession of any amount in view of the public was made a misdemeanor. In passing theMarihuana Reform Act of 1977 –then co-sponsored by a Republican State Senator and a Democratic State Assemblyman – the Legislature made an explicit finding that became part of the new law: “Arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana (sic) for personal use. Every year, this process needlessly scars thousands of lives and waste millions of dollars in law enforcement resources, while detracting from the prosecution of serious crime.” This provision of the law was never changed.
Today, arrests for possession of small amounts of marijuana are skyrocketing in New York. In New York City, marijuana possession is the number one arrest, comprising 15 percent of all arrests in that city. A growing body of research and recent news reports demonstrate that most of these arrests are the result of illegal frisks and searches.
State Senator Mark Grisanti, sponsor of the legislation in the Senate, said, “With New York in serious fiscal crisis, we simply cannot afford to arrest tens of thousands of otherwise law-abiding citizens for possessing small amounts of marijuana – especially when so many of these arrests are the result of illegal searches or mis-charging. Furthermore, the unwarranted racial disparities associated with these arrests are unacceptable. This legislation strikes the right balance by discouraging and punishing possession and use of marijuana while promoting smarter, more effective use of our limited fiscal resources.”
Assemblyman Hakeem Jeffries, sponsor of the legislation in the Assembly, said, “This legislation is an additional step toward a more equitable criminal justice system that treats everyone the same regardless of race or socioeconomic status. During these difficult economic times, our increasingly scarce law enforcement resources should be used in the most efficient manner possible. It is therefore important that the legislature promptly act to address the explosion of improper marijuana arrests.”
A major two-part story by National Public Radio-affiliate WNYC (April 26 and 27, 2011) further confirmed research findings that most people arrested for possessing small amounts of marijuana were either mischarged – charged with a crime they did not commit – and/or illegally searched. Often in the course of a stop-and-frisk encounter, if the police find marijuana in a pocket or bag, they nonetheless arrest and charge the individual with possessing marijuana in public view – a misdemeanor. Many others are compelled by the police to reveal the marijuana in their bag or pocket; the police ask them to “empty out your pockets” or “empty out your bag.” Many people comply with the officer’s request, even though they are not legally required to do so. Once in “public view,” the marijuana possession becomes a misdemeanor – a criminal offense – and then the person is arrested and charged for this offense. The NYPD makes nearly a thousand arrests and jailings a week for simple marijuana possession – one of every seven arrests in NYC is for marijuana possession.
Statewide, nearly 70% of those arrested for possessing small amounts of marijuana are of young people aged 16-29. Nearly 84% of all those arrested are black and Latino, even though studies show that young whites use marijuana at higher rates. Studies by Dr. Harry Levine of Queens College show that among cities and counties in the U.S., Buffalo, Syracuse and New York City rank among the highest in terms of racial disparities associated with arrests for possessing small amounts of marijuana.
“The consequences of an arrest are severe, especially for young people of color who are already disproportionally arrested and incarcerated,” said Kyung Ji Rhee, Director of the Institute for Juvenile Justice Reform and Alternatives. “Young people of color are targeted, illegally searched and being put through the criminal justice system for possessing marijuana. Whatever your opinion may be on marijuana, this is no way to treat or teach young people about the choices they make.”
The April 2011 WNYC story highlighted the extent to which illegal searches lead to these arrests – noting that in the Bronx alone, the District Attorney throws out 10 – 15 cases every day because the police illegally searched and mischarged a person for marijuana possession in public view, when in fact the person possessed marijuana in their pocket or bag.
“I shouldn’t have to feel like a criminal when I walk down the street in my neighborhood,” said Alfredo Carrassquillo, a Community Organizer with VOCAL-NY. “It feels like the police aren’t there to protect the community when they stop, frisk and illegally search people like me just because we’re going home or hanging out in the park. I’ve spent the night in jail multiple times for having a small amount of weed in my pocket because police have used a loophole in the law to arrest me — charging me with marijuana in public view — even though I was never using marijuana in public. We should be spending money on summer youth employment, after school programs, and jobs for people coming home from prison, not illegal arrests.”
Under the reform legislation introduced by Senator Grisanti and Assemblyman Jeffries, possession and use of any amount of marijuana would remain illegal. The reform standardizes penalties for possession of 25 grams or less of marijuana in private or public – violators would be subject to a fine, while multiple violations could lead to a jail sentence.
“These arrests have become a “head start” program into the criminal justice system for young people, especially young black and Latino men,” said Gabriel Sayegh, NY State Director of the Drug Policy Alliance. “Senator Grisanti and Assemblyman Jeffries should be commended for their leadership. Democrat or Republican, upstate or downstate – reasonable people know we cannot afford to spend tens of millions of dollars every year to illegally search, arrest and jail people for possessing small amounts of marijuana, especially when those people can instead be ticketed and fined. There are clearly much more effective ways to spend our limited resources to realize public health and safety.”

Unlawful Possession of Marijuana (UPM) and the ACOD

Thanks to the internet, I have noticed that people calling about UPM cases are pretty well informed about the law in advance of their call to me. Many of these people call simply to confirm what they think they already know. What many people know is that UPM (New York Penal Law Section 221.05) is punishable by a fine of no more than $100.00 for the first offense. What many people do not know is that a conviction for UPM requires a mandatory surcharge of $95.00 in addition to the fine, so a guilty plea for a first offense will cost a couple hundred bucks. My fee for handling a local UPM case starts around $300.00. Very often I can spare my client a trip to court (if certain conditions are met) and almost all of the time I can get the case dismissed. Clearly, hiring a marijuana lawyer is money well spent for a UPM case. Sadly, I see many UPM defendants plead guilty to the charge. They just don't think a lawyer is necessary and unfortunately, most judges do not encourage the defendant to find a lawyer and they accept the guilty plea. Unlike misdemeanor or felony cases, there is no statutory or constitutional right to a public defender for a UPM case (which is very unfortunate due to the seriousness of the collateral consequences of controlled substance convictions).

What many people also know is that many UPM cases are dismissed. It's called an ACOD "Adjournment in Contemplation of Dismissal", (New York Criminal Procedure Law Section 170.56) To avail yourself of the benefit of an ACOD, you generally will need a lawyer. It is not a simple matter of asking for it. And the judge will want to get the prosecutor involved. This is where you really need a lawyer to help you if you are thinking of going at it alone. This is not an outright dismissal. It is a conditional dismissal and the the case will not be dismissed until the conditions are met. The conditional period can last as long as twelve months. Usually, the only condition is that the defendant not get arrested during the conditional period. But sometimes things can go wrong, very wrong. For example, I spoke with someone the other day whose UPM case was resolved by an ACOD a couple of years ago. One of the conditions of the ACOD was that she attend group counseling. This recreational and responsible marijuana smoker soon found herself at weekly meetings with heroin addicts, crack heads, and a counselor who insisted this young lady was a serious drug abuser. Had she found a lawyer, this would not have happened.

If you find yourself charged with UPM in New York, you would be very wise to talk to an attorney. There are many things that can go wrong if you try to handle it yourself and there are many lawyers (like me!) whose fees are very reasonable for a UPM case.

A Client In Jail

Sometimes I question my sanity for becoming a criminal defense lawyer. This week has been one of those times because I have spent most of my time trying to free a client from the county jail. When I have a client in jail, my mind is consumed with concern for the client, and concern for myself that I am doing everything possible to free my client. There will always be hard work involved in any kind of lawyering. However, there is a cavernous divide between the significance of worrying about someone's money, versus someone's liberty.

While the definition of liberty varies, the notion is at its essence what defines me as human being, and an American citizen. Americans posses the fundamental right to not be in jail.That's what freedom means to me. There is a difference between the county jail and prison. People in prison have been convicted in a court of law and hopefully been afforded the full opportunity to stand up to their accusers. Most people in jail merely stand accused. They are supposed to be presumed innocent by the court yet they are treated like convicts. Of course dangerous and violent defendants must be locked up until it can be determined they are not a danger to society. But for the citizen accused of a crime where the only possible victim is themselves, (such as people arrested for drug possession where the drugs are for personal use), the deprivation of liberty is an enormous infringement of civil liberties and human rights.

This most recent case has been especially trying for me because my client, was in my opinion, a political prisoner for the four nights she spent in jail. She is a medicinal marijuana user who stands accused of possessing (not selling) an illegal amount of marijuana for personal use. That is the position of the police, not my opinion only.

The New York State Assembly recently passed a bill that would legalize the possession of marijuana for medicinal use. You can read about it here: http://saratogalawyer.blogspot.com/2008_09_01_archive.html (the very first post of the Saratoga Lawyer Blog!) The amount of marijuana my client stands accused of possessing would be legal if this bill was passed. It's something to think about if you care about liberty.

Marijuana In The Local News

In the past twenty four hours, the Albany Times Union has published three stories related to marijuana. As a marijuana lawyer who practices in Albany County and Capital Region courts, I can't help but comment.

Shen hockey in turmoil over alleged marijuana use

"According to multiple sources, the players are accused of smoking marijuana at the hotel the team stayed at while competing at the SUNY Morrisville tournament."

Is this really a story? I mean, would you expect anything else from high school hockey players, or hockey players anywhere for that matter? BIG STORY high school hockey players smoked weed and they are in BIG TROUBLE. Oooohhhh. Those kids are bad!

Traffic stop in Colonie turns up gun

"COLONIE — Two parolees face felony weapons charges after an officer, who smelled marijuana smoke at a routine traffic stop, allegedly found a loaded handgun in the car."

So I guess what happened here is that the cops are saying they smelled "burned marijuana" and that gave them probable cause to search the car without a warrant. As a marijuana lawyer I would be interested to know how the arresting officer can distinguish between burned marijuana and other burned vegetation. Was he trained in this skill? If so, did his instructor burn sage, and then cannibis? Parsley, and then cannibis? Tobacco, and then cannibis? The story does not mention if cannibis was actually recovered from the defendants.

O.D. Heck workers face drug charges

When I started reading this story, I thought these guys must have been smoking crack or doing coke. These guys took what many blue collar guys refer to as a "smoke break". Except, they were smoking the un-lethal illegitimate cousin of tobacco, marijuana. You know, I'm willing to bet these guys are great at their jobs and if they are smoking while working, they are probably self medicating. Two of the accused are grounds workers.

Despite the fact that the legislature of New York State decriminalized the possession of marijuana a long time ago, our society still suffers from "refer madness". The guys in this story are being treated as criminals because they were smoking in public which is a misdemeanor offense under NY Penal Law 221.10. The story says they were observed passing through a patch of woods and were on a deserted golf course where they were observed passing a pipe. The statute outlaws smoking weed in a "public place". It seems to me these guys did everything they could to conceal their smoking by avoiding a place where other people were not likely to be present.

Heroin in? A follow up.

I had a client not too long ago who was charged with "criminally possessing a hypodermic instrument" in violation of NY PL 220.45. My client was a heroin addict. He overdosed in a friends house. His friend called an ambulance. For some reason, the police showed up as well. Because there was a needle near my client, he was charged with a Class A misdemeanor, a relatively serious charge.

Well it turns out the house he allegedly committed his crime in was just across the town line, which was just outside the jurisdiction of the police department that wrote him the appearance ticket. Therefore, the court lacked "geographic jursiduction" over my client.

I showed up at the scheduled court appearance without my client and made an oral motion to dismiss the charge for lack of jurisdiction. The Judge really had no choice but to grant the motion.

The prosecutor basically conceded to my argument to dismiss. However, he questioned if what I was doing was in the best interest of my client, who obviously was a heroin addict. I felt a little guilty at first but now looking back, I am confident that a jail would have been worst possible place for my client to deal with his problem in.

Need a criminal lawyer? Read this.

http://www.scribd.com/doc/6123526/The-Truth-About-Hiring-a-Criminal-Defense-Lawyer/

I love this guy. When I was starting out as a criminal defense attorney I spent most of my time seeking out and learning from the best practitioners out there. Brian Tannebaum knows what he is talking about in this e-book.

Marijuana Law Update

Two states passed marijuana related initiatives yesterday. From the NORML Website:

1. Michigan legalized medical marijuana.

2. Massachusetts decriminalized possession of small amounts of marijuana.

In New York, Democrats took control of the long time Republican dominated State Senate possibly easing the way for passage of a medical marijuana bill in New York.

Criminal Procedure

A big part of my job as a criminal defense attorney is simply making a prosecutor do his or her job. The criminal procedure law is very specific and failure to follow the rules for prosecuting a defendant can result in either a dismissal of a case, or a far better plea bargain offer than what was made initially. I make sure a prosecutor follows the rules. Most prosecutors do their job very well, especially in Saratoga County where I live. But every once in a while, a prosecutor slips up and my client makes out well. Don't worry, I'm not talking about violent criminals here. Most of my clients are white collar.

I'm always amazed when a prosecutor asks me if my client has a criminal history. First,I'm pretty sure that running a record on a defendant is part of a prosecutor's job. Second, most of my clients are actually criminals and are probably not telling me the truth. Third, I have no way of getting the records a prosecutor can get. So why would they ask me about my client's record?

Just the other day I was working out a deal for a client charged with a marijuana offense. I rejected the first plea bargain offer and I was negotiating. The prosecutor asked me if the client had a criminal history. My client did in fact tell me this wasn't his first offense but he couldn't remember the outcome of the case, nor could he even remember the charge. So the case could have been dismissed or plea bargained, who knows? When this prosecutor asked me the criminal history question, what was I supposed to say? I said I don't know, and that was the truth. Apparently that answer was good enough for him and he gave my client a sweet deal.

Marijuana Legalization: Where does New York stand?

New York could become the thirteenth state to legalize “medical marijuana”.

In June of 2008, the New York State Assembly passed a bill that would allow a medical patient to use marijuana to treat a serious illness under the supervision of a medical professional. A patient would be required to get a prescription from a doctor and would be allowed to possess a limited supply of marijuana; twelve plants or two and a half ounces. The bill was passed after legislators listened to the testimony of cancer patients, doctors, and scientists who advocate the legalization of medical marijuana as a means to end the pain and suffering of thousands of New Yorkers.

The New York State Senate is also considering a similar bill that would legalize medical marijuana but there is big difference between the Assembly bill and the Senate bill. The Senate bill provides for the creation of a regulatory framework to control the production and disposition of medical marijuana. Apparently some Senators are concerned that the Assembly bill essentially allows patients to obtain marijuana from “drug dealers".

New York is moving forward on this issue but until the Republicans lose their majority in the Senate, it appears that a medical marijuana bill will not make it to the Governor’s desk anytime soon. And even if medical marijuana is legalized in New York, it would still be illegal to possess medical marijuana in New York under Federal law.

James Tedisco and Roy McDonald, who both represent Saratoga County residents in the Assembly both voted against the medical marijuana bill.