201612.23
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Marijuana and Conditional Criminal Record Sealing in New York

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As the year comes to a close and with November’s election behind us, it’s time to check in on where things stand with the push to legalize marijuana in various states across the country. Ballot initiatives seeking to legalize the recreational use of marijuana were decided on by voters in five states, with the initiatives passing in four states.   Massachusetts, Maine, California, and Nevada now join Alaska, Colorado, Oregon, Washington, and Washington, D.C. in legalizing the recreational use of marijuana. Passage of these voter initiatives in Massachusetts and Maine mark the first time states on the east coast have voted to legalize marijuana.   It should be noted that possessing marijuana is still against federal law.

New York is not among the states where the recreational use of marijuana is legalized.  In New York, possessing marijuana for recreational use is against the law (however, in 2014, New York passed a law permitting medical marijuana, but the law expressly prohibits the smoking of marijuana for patients who qualify for the program). Charges for possessing marijuana range from a violation of the law for possessing less than two ounces of marijuana, up to a C felony for possessing more than ten pounds of marijuana. Certain marijuana possession charges in New York qualify for a special provision known as an adjournment in contemplation of dismissal (“ACD”). This remedy adjourns the case for one year, whereupon the case will be dismissed. However, if an ACD is granted, a defendant must not be rearrested within the year adjournment, otherwise you risk having your case reopened by the District Attorney’s office and further prosecuted on the underlying charge.

What if you’re not eligible for an ACD because you have a prior drug related conviction on your record?

In 2009, New York added a new section to the Criminal Procedure Law that provides people convicted of drug offenses an opportunity to have their criminal record sealed. If you’ve been convicted of a drug related offense, you may qualify to have this conviction sealed.   Normally, after a plea of guilty or conviction after trial in New York, a felony or misdemeanor conviction would remain on your record permanently. However, in an effort to aid those whose struggle with drug or alcohol addiction led them to commit crimes, CPL 160.58 allows a judge to seal your drug related conviction, meaning your drug related conviction would no longer appear on your record.

To qualify, you must have completed a judicially sanctioned drug treatment program. The Court will also look to see how your conviction has impacted your life and any difficulty you’ve had reintegrating into society as a result of the stigma of a criminal conviction appearing on your record. A written motion to the Court is your opportunity to explain your experience in overcoming addition and how a criminal conviction has impacted your life.

If the Court grants your application and seals your conviction, the sealing of your record is conditional. This means if you get rearrested for any misdemeanor or felony offense, your record is immediately unsealed.

There are many other important details surrounding sealing under CPL Section 160.58.  If you have completed a drug treatment program and want to see if you are eligible to have your criminal record sealed, call us for a free consultation at 516-294-0300.  Do not let your criminal conviction hold you back from advancing in your career or schooling. It’s possible your record can be wiped away with the making of a proper motion granted by the court to have your criminal record conditionally sealed.

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