No. Marijuana is NOT Legal in New York City.

The Marijuana Law in New York City has not changed.  The WAY marijuana laws are Enforced has changed.

As of September 1, 2018, the New York City Police Department will be enforcing existing marijuana laws in a different way than they have in the past.  Many people are making the mistake of describing the new policy as "decriminalization" of marijuana in NYC.

This is wrong.

Marijuana laws are unchanged.  Marijuana has not been decriminalized in New York State or in New York City.  All the marijuana laws that were on the books in New York prior to September 1, 2018 are still in effect as of September 1, 2018.

What has changed is how people who are caught with marijuana will be treated.  Previously, people who were caught with marijuana were formally arrested and usually given Desk Appearance Tickets.  The Desk Appearance Ticket required an appearance in honest to goodness regular criminal court, and involved being fingerprinted and photographed.  In some cases, where people did not qualify for a Desk Appearance Ticket, people accused of marijuana offenses could be held in custody and put "through the system" in the regular arrest to arraignment process.  Those going through the system would spend 19-24 hours in custody awaiting an appearance before a Judge.

Under the new policy, most, but not necessarily all, people accused of low level marijuana possession will now be given small pink summonses instead of Desk Appearance Tickets.  

These small pink summonses are tempting to view as sort of like parking tickets or civil summonses.  That is a mistake.  The pink summons courts are a subset of the regular criminal courts.  You will note that the pink summonses do say "Criminal Court" on them, not "Civil Court".  So the charges could well be the same as the charges that might have appeared on a Desk Appearance Ticket, such as Unlawful Possession of Marijuana (PL 221.05) or Criminal Possession of Marijuana (PL 221.10).  The charges are the same.  The law is the same.  The only thing that is different is the location where the case is heard.

So is there anything that is different?

One thing that is different is that in the pink summons courts, it is much more widely accepted that an appropriately authorized attorney can make the appearance on behalf of the accused.  Therefore, people who get these tickets are placed in less difficult circumstances than in the past where tourists, both international and domestic, would get Desk Appearance Tickets and need to make an appearance in regular Criminal Court at some inconvenient future date.  Although appearance by affidavit is authorized in regular criminal court on a DAT, it is always a bit dicier to make that effort and some judges would decline to allow it.  Such is not generally the case in the pink summons courts, where appearance by way of appropriate affidavit is a commonly accepted practice.  

Also, the appearance dates for pink summons matters tend to be more flexible than with Desk Appearance Tickets.  Those with Desk Appearance Tickets who need to adjust the date of appearance face various levels of ability to accomplish that depending on the courthouse where the case is to be heard.  While at some courthouses, it is fairly simple to arrange a date of appearance change, in others it is more problematic and requires that you jump through hoops to come up with a reason deemed good enough.  Pink summons matters are generally more flexible, and in fact, the City offers those with pink summonses the ability to advance cases from any courthouse on Tuesday evenings at 1 Centre Street in Manhattan.

Outcomes Likely Largely the Same

Apart from the general availability of appearance by retained counsel, and the greater flexibility of scheduling, the laws are the same and the outcomes of these cases will likely not dramatically change from the outcomes that ultimately occurred when more of the case were brought by way of Desk Appearance Tickets.  In many marijuana cases, the Adjournment in Contemplation of Dismissal will be available from the Court as an option from the pink summons court, as it would have been available from a Judge sitting in regular Criminal Court in the Desk Appearance Ticket courtroom.

And if you really want to go to regular Criminal Court, you can.

Further, if anyone feels cheated by not being sent to regular Criminal Court, nobody is required to have a pink summons heard in the pink summons court.  As a general rule, anyone who is given a pink summons who would prefer his or her case to be heard in regular Criminal Court has the right to insist upon that.  Most people, however, will probably feel that being sent to the summons court is a better choice for them.

Non us Citizens Still Need to be careful here

People who are not citizens of the United States might be tempted to assume that the pink summons process relieves them of the need to provide information about this interaction with the police to Immigration authorities.  That would be a very big mistake to make that assumption.  The police are fond of saying to people to whom they give pink summonses, that they "aren't being arrested" but that they are "just" getting a summons.

In more than one context, non US citizens who have contact with Immigration authorities are not simply asked "Have you ever been arrested?".  (By the way, despite the popular notion that a pink summons is not an "arrest", I am not so sure that the law would agree with that.  The law understands the term arrest to mean more than simply "being handcuffed".  Under the law, a person need not be handcuffed to be "under arrest".  The concept of being under arrest involves a lack of freedom of movement.  A good way to think of this is to imagine what would have happened to you if instead of waiting patiently for the police officer to give you the summons, you simply ran away.  If you would have expected the officer to run you down and detain you, then you really weren't free to leave were you?  If you weren't free to leave, and if the police officer would have been able to chase you down and detain you had you attempted to leave, then maybe you were arrested after all.)

Regardless of the "arrest" language, however, there are multiple contexts in which non-citizens can be asked about whether or not they have been accused of a crime or accused of an offense, other than a parking ticket.  For those non-citizens who get pink summonses, the answer is YES.  It is often said that some non-criminal offenses (like unlawful possession of marijuana, PL 221.05) are LIKE parking offenses.  This is a true statement.  They are LIKE parking offenses.  And when they are charged on a small pink thing that looks a lot like a parking ticket, people can be fooled into believing that they can treat it as if it IS a parking ticket.

Wrong.  Being LIKE a parking ticket in some respects (like, for example, not being a crime) doesn't mean that pink summonses ARE parking tickets.

Especially when it is Immigration asking the questions, you most certainly must disclose it when asked about being ACCUSED of any offense.  This type of question addresses only the accusation, and not the outcome, so that even if the case were dismissed after an ACD, a non-citizen would still need to answer YES.  The good news is that for most offenses that find their way onto pink summonses, including marijuana offenses, the outcomes of the cases will not often be a deal breaker for Immigration.  You are likely to be OK.  But disclosure is most likely required, along with proof of the outcome of the summons in court.

By Don Murray

September 1, 2018


Don Murray is one of the founding partners of the Criminal Defense law firm Shalley and Murray.  Mr. Murray has been a New York City Criminal Lawyer for more than 27 years, and has handled countless marijuana arrests during his career.  He can help you too.  Call or text 718-268-2171 today to set up your free consultation.

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