Brooklyn DA announces new policy to consent to the dismissal of many marijuana convictions from Kings County--thousands of convictions could be erased.
This article has been updated on September 8, 2018 to reflect additional details that were unavailable at the time the initial article was written.
The Brooklyn District Attorney's Office announced this morning that a new policy would allow those who have convictions for less serious marijuana offenses to apply to the court to have those convictions dismissed (and sealed). Although the Court would ultimately have to approve, under the policy, the District Attorney's Office would generally consent to applications for the dismissals, making it highly likely that judges will simply agree.
New Sealing Law Makes Marijuana Convictions Already Subject to Sealing
Currently, however, those with criminal convictions for almost any misdemeanor (including the marijuana misdemeanors covered in this new policy) and even any marijuana related felony in New York are already eligible for the sealing of those convictions under new extremely broad sealing laws that became effective in October, 2017. Therefore, this new policy of the Brooklyn DA's Office doesn't necessarily add too much to the existing laws already in place, except in several significant respects.
Ten Year Waiting Period May Not Apply
First, under the new conviction sealing laws, a person must wait 10 years after the conviction before being eligible to request sealing. Apparently, the Brooklyn DA's policy would be to consent to the dismissal of marijuana convictions that are less than 10 years old. This in itself would be a significant difference and make available the relief even to people, in theory, who were convicted of a marijuana offense within the last month.
This new Policy May Apply to "Violation" Level Offense of Unlawful Possession of Marijuana
Some people actually may have been convicted of PL Section 221.05, Unlawful Possession of Marijuana. Unlawful possession of marijuana is not considered a crime, and therefore is not something that would be available to be "sealed" under the new sealing law. In theory, violation level offenses are already sealed, and generally unavailable for review by the general public as are actual criminal convictions. It seems as if the new policy is meant to permit people to dismiss violation level marijuana offenses as well. Given that violation level offenses (on the order of parking tickets in terms of seriousness) generally do not have significant impacts on most people's lives, getting a violation dismissed and/or sealed is unlikely to dramatically impact vast numbers of people's lives. Perhaps in the context of those who are not citizens of the United States, there might be some real impact, but most of the time, for most people, a non-criminal marijuana offense is unlikely to be the dealbreaker in someone's life.
Unlike the sealing law, the new Brooklyn policy offers outright dismissal
The sealing provisions of New York State offer the chance to "seal" the conviction, but the matter is not dismissed. What this means is that under the sealing provisions, the "conviction" is still there, but it simply can't be discovered in most background checks. The conviction exists, but it is mostly hidden. The Brooklyn policy as to marijuana convictions, however, involves the underlying conviction being outright dismissed. This difference may not make a huge difference for most people, since invisibility of the conviction will usually serve the same purpose as having the conviction dismissed.
Non-Citizens Could be the Big Winners Here
But in contexts where law enforcement type background checks might bring the sealed conviction into view, it is conceivable that being able to say that the matter was "dismissed" could be helpful. For example, what immediately comes to mind is the immigration context. Sealing convictions has not historically made much of a difference for non citizens. Immigration, as I understand it, does not recognize sealing rules. A conviction is a conviction for immigration purposes. But Immigration does notice dismissals, and they don't generally draw a distinction between dismissals on the merits, and dismissals for other reasons. Therefore, for non-citizens with marijuana convictions who will not be saved by mere sealing of their convictions, may well benefit from the outright dismissals offered by the Brooklyn District Attorney.
But are there really that many people who will qualify for the relief?
News reports have suggested that there are great numbers of people who might be eligible for this relief, although the source of this information is unclear. If the source of this projection is simply the set of all people who have convictions for misdemeanor marijuana charges, I am uncertain that there will be as many people eligible for the relief as is being suggested. Here is why:
The circumstances in which individuals who have no other other criminal history end up with a misdemeanor marijuana conviction in New York City, including Brooklyn, are few and far between, and this is something that has been true since I started practicing in NYC in 1990. A person with no criminal history who is arrested for misdemeanor possession of marijuana is extremely, extremely unlikely to end up convicted of a marijuana misdemeanor offense. And when I say extremely extremely unlikely, I mean next to never.
In fact, if a person who has no criminal history is arrested for a misdemeanor marijuana offense, and that person concludes his case with a misdemeanor marijuana conviction, then there is probably a good argument to be made that two extremely unlikely things occurred. The first is that he received ineffective assistance of counsel. The second is that the Judge involved in the case took knowing advantage of the ineffective lawyer and heartlessly gave someone a criminal record under circumstances where virtually nobody else gets a criminal record. The only circumstance where someone with no criminal history might be accused of a marijuana related offense and end up with a misdemeanor marijuana conviction, might be where the person was arrested for felony weight marijuana (say ten pounds). In such a case, a settlement might be that the felony case would be dismissed and replaced by a misdemeanor for purposes of settlement. But the question is whether the Brooklyn DA's new policy would provide for dismissal of a misdemeanor marijuana charge when the original charge was for possession of ten pounds.
The reality of negotiations in NYC Criminal Courts means that for the most part, people who end up with misdemeanor marijuana convictions are going to be people with extensive criminal histories. And this suggests to me that, unless there were a large pool of ineffective lawyers preying upon the populace in Brooklyn, combined with a set of heartless Judges who allowed it to happen before their eyes and took advantage of it, there just aren't going to be a whole lot of people out there with one and only conviction and that conviction is for a misdemeanor marijuana charge. And if most people with actual misdemeanor marijuana convictions have extensive criminal history baggage, then these same people may not be the sort of people that the Brooklyn DA's Office is likely going to consent to dismissal of their marijuana convictions.
The Procedure for Obtaining the Dismissals
The DA's Office has yet to release the precise details of the process, but it sounds as if some sort of an application, probably very similar to (but less extensive than) the application for sealing convictions under the new sealing law, will need to be presented to the DA's Office. Presumably, these applications will be reviewed, and those that are deemed worthy of consent will be sent to Court for Judges to approve or disapprove. I suspect that most Judges will be willing to approve dismissal and sealing of nearly every case in which the DA's Office consents. According to the Brooklyn District Attorney's Office press release on this new program, applicants will not even need to appear in Court on the date the matter is scheduled to be decided.
Shalley and Murray can Help.
Whatever form the motion takes, we can certainly help anyone with a marijuana conviction from Brooklyn to obtain the dismissal offered by the DA's Office. We have been at the forefront of the new sealing motions in New York, having filed and successfully obtained sealing in numerous cases around New York State since quite literally days after the new law became effective in October of last year.
If you or someone you know has a marijuana conviction from Brooklyn, from any time (not just older than 10 years), contact us by telephone or text at 718-268-2171, and we can help you be among the first to take advantage of the new policy in Brooklyn.
Veteran New York City criminal defense lawyer Don Murray has been representing people accused of marijuana offenses, and indeed almost every other sort of offense in New York City since 1990. He can help you too. Call or text 718-268-2171 for your free consultation.