New York May Further Decriminalize Marijuana
New York Gov. Andrew Cuomo is urging his state’s lawmakers to decriminalize small amounts of marijuana that are held in public view. And while the passage of such a law would be a significant development, it wouldn’t be the first marijuana decriminalization law in the Empire State. The New York legislature initially decriminalized possession of up to 25 grams of marijuana in 1977, reducing the punishment for first-time offenders to a simple $100 fine.
But that law distinguishes between pot that’s safely tucked away and pot that’s on display. If you possess marijuana openly, you’re still at risk for a Class B misdemeanor arrest and a criminal record.
Cuomo’s push for reform follows criticism that NYPD officers have used “stop and frisk” searches to trick people into publicly displaying their previously private stash. If an NYPD officer asks you to empty your pockets, and you publicly reveal marijuana in doing so, the officer can technically arrest you for possession rather than write you a $100 citation. We’ve previously reported on New York City’s controversial street search practices on Lawyers.com.
Last year, New York City Police Commissioner Ray Kelly directed his department to issue the $100 violations instead of making arrests for possession of small amounts of marijuana that are discovered during “stop and frisk” searches. But ignoring the letter of the law is not a valid long-term solution, according to Kelly.
“I was asked to respond to criticism by some members of the [City] Council that the Police Department was making, quote, ‘too many’ arrests for small amounts of marijuana,” Kelly said at Gov. Cuomo’s press conference announcing the legislation. “And my response to them, was, ‘Well, your option is to go to Albany and get the law changed’ — better that than having New York City police officers turn a blind eye to the law as it was written, and as it is still written.”
When You’re Stopped and Frisked
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Even though New York’s laws regulating marijuana possession may change, the new law won’t do away with the NYPD’s “stop and frisk” policy. And in the meantime, New Yorkers who carry around small amounts of marijuana should remain aware of the legal technicalities that might affect them if they’re stopped and searched.
“In any given case, there’s a question of whether or not the ‘stop and frisk’ passes constitutional order,” said attorney Eric Franz. “That has a lot to do with what the police ask you to do.”
“You’re never under any obligation to consent to a search. You can’t resist — if the police tell you you’re under arrest and to put your hands behind your back, you must comply — but you don’t have to consent to the search. You can tell the officer you’d rather not answer his questions. And if you have your cell phone, you can record the conversation in the encounter.”
Even if you are arrested for less than 25 grams of marijuana, New York City attorney Neal Wiesner says that convictions based on possession alone are rare, and often conclude with an adjournment in contemplation of dismissal, or ACD.
“With an ACD, the charges are dismissed automatically if you can stay out of trouble for a period of time, usually six months,” Wiesner said. “No conviction goes on your record, and sometimes there’s even no record of an arrest.
“If money is an issue, there’s really no point in rushing to raise funds to defend against this. You can comfortably rely on a public defender, because getting an ACD is almost inevitable, and your charges will be disposed of in one court appearance.”