Annual Review of New Criminal Justice Legislation 2021
10.4.2021
This article contains the annual review of new legislation amending the penal law, criminal procedure law and related statutes. The discussion that follows will highlight key provisions of the new laws and, as such, the reader should review the legislation for specific details. In some instances, where indicated, legislation enacted by both houses is awaiting the governor’s signature and, of course, the reader should check to determine whether the governor has signed or vetoed the bill.
Cannabis Legislation
Among the many bills enacted by the Legislature in the last session, there were three substantive pieces of legislation. The first was the Marijuana Regulation and Taxation Act (MRTA).[1] This legislation enabled New York to join 14 other states in which the recreational use of small amounts of cannabis has already been legalized. In changing existing marijuana laws, the Legislature attempted to correct what it viewed as a wasteful use of law enforcement resources that disproportionately had an impact on the lives of minority communities.
The MRTA establishes the Office of Cannabis Management, the Cannabis Control Board, and a 13-member Advisory Board; all of these entities will regulate, control, license and eventually oversee the retail marijuana industry in New York. This article, however, will review aspects of the new law that relate to the criminal justice system: changes in criminal penalties, automatic expungement and sealing of certain convictions; the vacatur of other convictions; the impact on searches of automobiles; and the effect on impaired driving cases.
With respect to criminal penalties, the new law repeals Article 221 (Offenses Involving Marijuana) and replaces it with Article 222, entitled “Cannabis.” Thus, all penalties will now relate to the unlawful possession or criminal sale of “cannabis” rather than “marijuana.” In addition, marijuana has been removed from the schedule of controlled substances under Public Health Law § 3306, where it was listed as an hallucinogenic substance. Under the Vehicle and Traffic Law, however, cannabis has been added as a “drug” (VTL §114-a).
One of the unusual aspects of Article 222 is that there is no definition of “unlawfully” in the definitional section at the beginning of the statute. What constitutes unlawful possession, therefore, must be gleaned from each individual section and inferentially from other sections, e.g., Penal Law § 222.05 and § 222.15. It should be noted that the possession amounts discussed below pertain to possession outside one’s private residence. Inside a private residence, a person can lawfully possess up to five pounds of cannabis.
Under the prior law, possession of more than an ounce (and up to two ounces) was a violation, while under the new law, a person over 21 years of age can lawfully possess up to three ounces of cannabis and is guilty only of a violation if he or she possesses between 3 and 16 ounces of cannabis.
An additional penalty applies to individuals who are under the age of 21 and who possess up to 3 ounces of cannabis. This penalty can be found in another statute, i.e., the Cannabis Law (Chapter 7-A of the Consolidated Laws) that was enacted under the MRTA. Under the Cannabis Law, an individual who is under 21 years of age (and above the age of 18) and possesses less than 3 ounces of cannabis is subject to a civil penalty of not more than $50. A person who is less than 21 years of age and possesses more than 3 ounces can be prosecuted under the Penal Law.
A person is now guilty of an A misdemeanor if he or she possesses more than 16 ounces of cannabis (rather than 2 ounces under the old law). To be now guilty of a class E felony, a person must possess more than 5 pounds of cannabis rather than 8 ounces under the prior law. The maximum penalty for possession of cannabis is a class D felony (rather than a C felony previously).
Separate penalties have been formulated for the possession of “concentrated cannabis,” which can contain very high levels of THC, the psychotropic ingredient in marijuana. Thus, the threshold amounts for possession or sale of concentrated cannabis are generally lower than for cannabis.
Regarding the unlawful sale of cannabis, the definition of “sale” (unlike the definition of “sale” for controlled substances) is “to sell, exchange or dispose of for compensation” (§ 222.00(3) and § 222.05(1)(b), emphasis added). Selling any amount up to ounces constitutes only a violation, while under the old law, selling any amount up to 2 grams constituted a violation.
A person now is guilty of an A misdemeanor if he or she sells between 3 ounces and up to 16 ounces of cannabis. If the seller is more than 21 years of age, he or she is guilty of a class E felony if he or she sells more than 3 ounces to someone less than 21 years of age. It is a defense, however, that the seller was fewer than three years older than the person who is under 21 years of age.
A person is guilty of a class E felony if he or she sells more than 16 ounces of cannabis. The maximum penalty for selling cannabis is a class C felony and is imposed for selling more than 100 pounds of cannabis. Under the prior law, the maximum penalty was imposed for selling only 16 ounces, which constituted a class C felony. There are also separate penalties for the criminal sale of concentrated cannabis.
Under “Restriction on Cannabis Use” (§ 222.10), smoking cannabis is prohibited in any location in which cigarette smoking is prohibited, e.g., restaurants, bars, subways, places of employment, etc. Smoking cannabis is also unlawful in an automobile under a series of amendments to the Public Health Law. Although this provision is contained in a penal law section, violations of the section are only subject to a “civil penalty not exceeding twenty-five dollars or an amount of community service not exceeding twenty hours.” It appears, therefore, that this is not an “offense” under Penal Law § 5.10(3) and it cannot be readily enforced by the provisions of the Criminal Procedure Law. The Office of Court Administration is exploring whether the civil penalty can be adjudicated in the New York City Criminal Court.
Finally, it should be noted that, under the Cannabis Law, there are separate penalties for licensed individuals who possess or sell cannabis in violation of the specific tax requirements of that law.
As noted above, there are provisions in the new Cannabis Law that refer to the new section of the Penal Law (Article 222). Some of these provisions raise questions that are not easily answered. For example, under Cannabis Law § 132(2), when a person sells marijuana after the license to sell is suspended, he or she “shall be subject to prosecution as provided in Article 222 of the Penal Law, and upon conviction thereof under this section may be subject to a civil penalty of not more than five thousand dollars.”
It is not clear, therefore, whether a penal law conviction is limited to only a civil penalty or whether the civil penalty is available in addition to a sentence under the penal law.
The MRTA permits a person to make a motion for resentence that would result in the vacatur or reduction of former marijuana offenses. Under a new section of the Criminal Procedure Law (CPL § 440.46-a), if a person’s conduct would not have been in violation of Article 222 had that section been in effect at the time of the offense, the Chief Administrative Judge must “automatically” vacate, dismiss and expunge that conviction. Such expungement must take place within two years of the effective date of the MRTA, i.e., March 31, 2023.
A person who is serving a sentence, or has completed a sentence for conduct that would have constituted a “lesser or potentially less onerous offense” under Penal Law Article 222, can petition a court for relief. A court is then authorized to vacate the conviction or substitute an “appropriate lesser offense.” If a lesser offense is substituted, the sentence cannot be “in any way either harsher than the original sentence or harsher than the sentence authorized for any substituted lesser offense.”
The MRTA also amends CPL § 170.56, which provides for an adjournment in contemplation of dismissal (ACD) in cases involving marijuana. When originally enacted, this section differed from the general ACD section in a number of ways. Most notably, under this section, an ACD can be granted without the consent of the people and the court can order an immediate dismissal in furtherance of justice. The MRTA has added an additional nuance to this section. A court can now “order that all proceedings be suspended and the action adjourned based upon a finding of exceptional circumstances.” The statute defines “exceptional circumstances” as including “potential or actual immigration consequences.”
The new law contains provisions that will have an impact on searches of automobiles by police officers. Almost 50 years ago, the Court of Appeals held that, when making a motor vehicle stop for a traffic infraction, and a police officer smells the odor of marijuana emanating from the stopped vehicle, the officer may search the vehicle pursuant to the automobile exception to the Fourth Amendment.[2] That is about to change.
Under § 222.05(3) of the Penal Law, probable cause to believe a crime has been committed cannot be based solely on the odor of cannabis or burnt cannabis, even in combination with the presence of currency in proximity to the cannabis. Therefore, a police officer will no longer be able to conduct a search of an automobile based solely on the fact that the odor of marijuana emanates from inside a vehicle.
In a related court decision, the Appellate Division, First Department, has revisited this issue. The court held that the odor of marijuana, plus the presence of a small amount of marijuana (seen in the center console of the car), consistent with personal use, does not provide probable cause and a nexus to justify a search of the trunk of an automobile.[3] The decision did not, however, address whether the odor of marijuana alone can justify the search of the passenger compartment or even an area accessible to the driver.
The statute does provide one exception to the above new rule. If a police officer is investigating whether a driver is operating a vehicle while impaired by drugs and/or alcohol, the search of an area readily accessible to the driver will be permitted. The search of the trunk, however, would still not be permitted based solely on the odor of marijuana.
In enacting the above provision and in limiting the scope of vehicular searches, the Legislature has granted more protection to New York citizens than that provided by the federal and state constitutions. An argument could be made, however, that, in doing so, the section violates the separation of powers provision of the state constitution.[4] Interpretation of the federal and state constitutions is left to the courts and one can argue that the Legislature cannot impose restrictions on a court’s interpretation of a Fourth Amendment principle, i.e., probable cause. It remains to be determined whether this statute will abrogate decisional law that permitted a wider search of a vehicle.
Finally, the MRTA contains provisions that will change provisions of the Vehicle and Traffic Law. Under VTL § 1227, the consumption of cannabis by a driver or passenger is prohibited inside an automobile that is on a “public highway.” This constitutes a traffic infraction and would justify the stop of an automobile but would not, under the above provision, permit a search of the vehicle.
Although marijuana has been removed as a prohibited substance under Public Health Law § 3306, “cannabis” has been included as a “drug” under the Vehicle and Traffic Law (VTL § 114(a)). As a result, a police officer can continue to arrest an impaired driver pursuant to VTL § 1192(4) and VTL § 1192(4-a) for driving while under the influence of cannabis (an unclassified misdemeanor). These sections prohibit the operation of a vehicle when the driver’s ability to drive is impaired by “the combined influence of drugs or of alcohol and any drug or drugs.” A driver who has smoked cannabis cannot, however, be charged under the driving-while-intoxicated statute. The statute also requires New York State to conduct an independent study to research potential technologies to assist in detecting the use of cannabis by motorists.
One commentator has noted that, unlike roadside testing for the presence of alcohol, there is a lack of sufficient reliability in the current tests for the presence of marijuana.[5] Some tests have shown some promise, however, including certain saliva tests that are now being developed.
Commission on Prosecutorial Conduct
A second substantive bill contains a number of amendments that will change the structure and function of the Commission on Prosecutorial Conduct. The statute creating the commission was first enacted in 2018, but amendments to the law were enacted in 2019 based, in part, on comments submitted by the Office of the New York Attorney General.
Subsequently, however, the statute was held to be unconstitutional in that it vested Appellate Division judges with certain authority that is not authorized by the New York State Constitution.[6] As a result, this year the Legislature has enacted amendments to address those challenges.
The third iteration of the commission[7] narrows the commission’s function. It now will serve as a fact-finding entity that will merely assist attorney grievance committees by reviewing complaints of prosecutorial misconduct and producing a factual record and recommendations. Those recommendations will then be transmitted to the various attorney grievance committees which can then accept or reject a recommended sanction, impose a different sanction, or impose no sanction.
It remains to be seen whether this latest version of the commission will improve its ability to address prosecutorial misconduct. It should be noted that the District Attorneys Association of the State of New York urged former Governor Cuomo not to sign the legislation for a number of reasons.
In a letter to the governor on June 14, 2021, the association president noted that the latest iteration of the commission would delay the discipline of those prosecutors who act improperly: “Rather than ensure the swift investigation of ethical violations resulting in public discipline for an offender, the Commission’s initial investigation, followed by a referral and a second, then constitutionally required investigation by the existing grievance structure, will only delay the discipline of those who offend” (emphasis added).
Parole
The third substantive piece of legislation that was enacted in the last session will have a significant impact on New York’s parole system. With the exception of Illinois, New York re-incarcerates more people on parole for technical violations (e.g., missing an appointment with a parole office, testing positive for alcohol) than any state in the country.
The new legislation, known as the Less Is More Act, will make a number of significant changes: (1) limit the types of technical parole violations for which incarceration will be permitted; (2) limit the length of incarceration for technical parole violations; and (3) provide a hearing in court before a parolee can be detained in jail pending adjudication of a non-technical parole violation.
Finally, in order to accelerate a person’s discharge from parole, or post release supervision, the new law provides for “earned time credits.” Under this provision, when an individual on parole completes 30 days of parole without any violations, the parolee earns 30 days off his parole time. Thus, for example, if a parolee is subject to two years of post-release supervision, and does not get into any difficulty after one year, he or she will then have completed the supervision.[8]
Other Legislation
In other legislation, one new crime bill was enacted in the last session, i.e., criminal sale of an unfinished frame or receiver.[9] Unfinished receivers, also called “lowers’ or “blanks,” are used to form the lower part of a firearm and the weapon is sometimes referred to as a “ghost gun.” By drilling holes in an unfinished receiver and combining it with other necessary pieces, an individual can assemble an operational semi-automatic firearm in a short period of time. These weapons are not traceable, as they can be made at home without any serial numbers. The new crime is both a class D and E felony. The second-degree crime, a class E felony, criminalizes the sale of up to nine unfinished receivers, while the sale of 10 or more unfinished receivers in less than one year constitutes a class D felony. A person who possesses an unfinished receiver is guilty of a class A misdemeanor. Individuals can avoid prosecution for any of the above crimes; however, if, within six months after the effective date of the legislation, an individual either surrenders the unfinished frames to law enforcement, or gives or sells them to a licensed gunsmith.
Each year the Legislature expands the definition of existing crimes and this year was no exception; in the last session this happened most frequently with weapons-related crimes. For example, one bill makes it a misdemeanor to possess a weapon if a person is subject to a temporary or final extreme risk protection order, or if a person is prohibited from possessing a weapon pursuant to 18 USC 922(g).[10] That section lists nine predicates for the unlawful possession of a weapon including one in which an individual is a “fugitive from justice,” and one in which an individual has been convicted of a misdemeanor for the crime of domestic violence.
In other weapons-related legislation, it is now a class D felony to purchase a firearm when a person has an outstanding bench warrant[11] or to manufacture a weapon that is designed to appear to be a toy gun.[12]
The crimes of extortion and coercion now include a threat to bring deportation proceedings and instilling a fear that a person’s immigration status will be reported.[13] The crime of coercion can now also be committed by forcing an individual to produce or share images depicting nudity or sexual conduct.[14] Finally, the crime of criminal impersonation now includes using another person’s electronic signature.[15]
Two crimes have been repealed by the Legislature. First, loitering for the purpose of engaging in a prostitution offense, a class A misdemeanor, was repealed.[16] The Legislature’s action was based on its recognition that the law was no longer necessary or relevant, and that its vagueness had led to arbitrary and discriminatory enforcement against women, particularly transgender women of color who had previously been arrested for prostitution offenses. Many of these women had been unlawfully targeted by the police during “sweeps” or “operations” where officers arrest large numbers of women in a given area at the same time.
The Legislature also repealed criminally possessing a hypodermic instrument, a class A misdemeanor.[17] The decriminalization of hypodermic needles strengthens and expands syringe access by allowing pharmacies and health care agencies to provide syringes without a cap. This will prove highly effective in helping to reduce the rate of HIV and hepatitis transmissions.
A number of procedural changes were enacted in the last legislative session. One of the more significant bills provides a jury trial in New York City to a defendant charged with any level of misdemeanor.[18] Previously, a jury trial had been granted to anyone charged with any misdemeanor outside New York City or a noncitizen in New York City charged with an A, B or unclassified misdemeanor.[19]
Two new procedural changes will assist appellate counsel. First, the Legislature has made it possible for ineffective assistance claims to be filed collaterally, i.e., by a CPL 440 motion, without running into several procedural bars that had previously existed. Under CPL § 440.10(2), a defendant was prohibited from collaterally raising an ineffective assistance claim that potentially fell within the narrow class of directly appealable ineffectiveness claims. Those procedural bars have now been removed.[20] A second bill streamlines the assignment of appellate counsel for indigent defendants in criminal cases.[21]
The Legislature has afforded those defendants who were not granted youthful offender status a second chance to receive that benefit. Under the bill, a person who was initially denied youthful offender treatment, and who has not been convicted of a crime for at least five years since his or her sentence, would have the opportunity to apply to the sentencing court for a new determination.[22]
A new term has been added to the Penal Law: “opioid antagonists,” which are substances known as naloxone, that have helped prevent drug overdoses. Under the new law, evidence that a person was in possession of an opioid antagonist may not be admitted at a trial or at a hearing in order to establish probable cause for an arrest.[23]
A number of procedural amendments will have an impact on certain classes of defendants: adolescent offenders; veterans; substance abusers; and victims of sex trafficking. Regarding adolescent offenders, one measure clarifies that where a misdemeanor plea is taken in Supreme Court by an adolescent offender, the matter must be removed to the family court for disposition. In removing an adolescent offender to family court, where the offender is statutorily eligible for diversion (adjustment), the youth part judge must direct the youth to the intake office of the local probation department for an assessment of adjustment suitability without an actual family court juvenile delinquency case being commenced.[24]
Judicial diversion has now been expanded to include individuals who commit certain non-violent crimes, e.g., auto stripping and identity theft, to support their use of substances. The term “substance abuse disorder” has been changed to “substance use disorder” to conform to terminology in the current Diagnostic and Statistical Manual of Mental Disorder (DSM-5).[25]
The Legislature has also broadened the availability of veteran treatment courts by authorizing the transfer of a criminal case against a veteran where the charges are pending in criminal court in a county that does not have a veteran treatment court, to a veteran court in an adjoining county.[26]
Defendants who are, or have been, victims of sex trafficking have been given several benefits under new legislative measures. First, defendants in this category who have been convicted of certain crimes will not be required to provide DNA samples to be included in the state DNA identification database. This includes a person convicted of prostitution or a person whose participation in an offense the court determines was a result of having been a sex trafficking victim under federal or New York law.[27]
Second, victims of sex trafficking who have been convicted of crimes other than prostitution-related offenses can now move to vacate the conviction. Thus, those convicted of any offenses related to trafficking can seek relief; any such motions are also deemed confidential and are not available to the public.[28]
Other procedural changes will affect public defenders and assigned counsel as well as Supreme Court judges. Under a new measure, public defenders will have the same access to criminal history records as prosecutors and judges.[29] The Legislature has also mandated that a Supreme Court judge must be certificated for an additional two-year term as long as he or she has the mental and physical capacity to perform the duties of that position. Thus, the Administrative Board’s discretion to deny certification has been diminished.[30]
A number of new laws will have an impact on prisoners. One such measure automatically restores voting rights to a person upon release from custody. Under prior law, a prisoner had to wait until the underlying maximum sentence had expired or until formal community supervision ended before being able to vote. It should be noted that, under this new law, before a court can accept a guilty plea where a prison sentence will be imposed, the court must advise the defendant, on the record, that a conviction will result in a loss of the right to vote while the defendant remains in custody.[31]
Another new law that will have an impact on prisoners is the Humane Alternative to Long-Term Solitary Confinement Act.[32] Under this measure, inmates cannot be placed in segregated confinement for more than 15 consecutive days or 20 days within any 60-day period. In addition, the legislation prohibits segregated confinement for people age 21 or younger; those who are age 55 or older; or inmates who are pregnant. The legislation also provides for more humane and effective alternatives to segregated confinement.
Finally, victims of crimes will benefit from several new laws. Under one measure, the Department of Corrections and Community Supervision can now notify a crime victim electronically when his or her assailant is paroled, conditionally released or released from confinement.[33]
Victims of domestic violence will specifically benefit from two new measures. First, the Legislature has created a domestic violence advocate-victim privilege, similar to the rape crisis counselor-victim privilege. As a result, advocates shall not be required to disclose confidential communication made by a domestic violence victim, except where the communications reveal an intent to commit a crime or the privilege is waived by the victim.[34]
Victims of domestic violence can also have their voting records kept confidential by filing an affidavit with the Board of Elections attesting to the fact that, because of the threat of harm, they wish their registration record (which contains their place of residence) to remain confidential.[35]
[1] 2021 N.Y. Laws, Ch. 92 (adding Penal Law Article 222), eff. March 31, 2021.
[2] People v. Chestnut, 36 N.Y.2d 971 (1975).
[3] People v. Ponder, 195 A.D.3d 123 (1st Dep’t 2021).
[4] See generally, People ex rel. Burby v. Howland, 155 N.Y. 270 (1898).
[5] Steven Epstein and Alexander Klein, Treating Marijuana Worse Than Alcohol Under DUI Regime Is a Mistake, NYLJ. April 7, 2021, https://www/law.com/newyorklawjournal/2021/04/07/treating-marijuana-worse-than-alcohol-under-dui-regime-is-a-mistake.
[6] Soares v. State of New York, 68 Misc. 3d 249 (Sup. Ct. Albany County 2020).
[7] 2021 N.Y. Laws, Ch. 153, (amending Judiciary Law 499-a), eff. June 17, 2021.
[8] 2021 N.Y. Laws, Ch. 427, (amending Executive Law 259), eff. March 1, 2022.
[9] S 13-A awaiting the governor’s signature.
[10] S 13-A awaiting the governor’s signature.
[11] 2021 N.Y. Laws, Ch. 236, (amending Penal Law 265.17), eff. July 6, 2021)
[12] A. 6522, awaiting the governor’s signature.
[13] 2021 N.Y. Laws, Ch. 447 (amending Penal Law 265.17), eff. July 6, 2021..
[14] S. 2986, awaiting the governor’s signature.
[15] A 6015, awaiting the governor’s signature.
[16] 2021 N.Y. Laws, Ch. 23, (repealing Penal Law 240.37), eff. February 2, 2021.
[17] 2021 N.Y. Laws, Ch. 433 (repealing Penal Law 220.45), eff. October 7, 2021.
[18] A 4319, awaiting the governor’s signature.
[19] See People v. Suazo, 32 N.Y.3d 491 (2018).
[20] A 2653, awaiting the governor’s signature.
[21] A 5689, awaiting the governor’s signature.
[22] A 6789, awaiting the governor’s signature.
[23] 2021 N.Y. Laws, Ch. 431 (adding Penal Law 60.49) eff. December 7, 2021.
[24] 2021 N.Y. Laws, Ch. 435 (amending CPL 216.00), eff. October 7, 2021.
[25] A 5511-A, awaiting the governor’s signature.
[26] A 5719-A, awaiting the governor’s signature.
[27] A 118-B, awaiting the governor’s signature.
[28] A 459, awaiting the governor’s signature.
[29] A 7729, awaiting the governor’s signature.
[30] A 6044, awaiting the governor’s signature.
[31] 2021 N.Y. Laws, Ch. 103, (amending Election Law 5-106), eff. September 2, 2021.
[32] 2021 N.Y. Laws, Ch. 93, (amending Correction Law 2(21, 137(6), 138, 401, 45), eff. March 31, 2021.
[33] 2021 N.Y. Laws, Ch. 210, (amending CPL 380.50), eff. July 31, 2021.
[34] S 1789 awaiting the governor’s signature.
[35] A 465-A, awaiting the governor’s signature.
