Changes in Prosecution of Unlawful Possession of Marijuana (Penal Law § 221.05) and Criminal Possession of Marijuana in the 5th Degree (Penal Law § 221.10) to take effect Monday, Jan. 14, 2019
WHITE PLAINS, NY — January 12, 2019 — In a continuing effort to promote fairness in how crime is prosecuted, Westchester County District Attorney Anthony A. Scarpino, Jr. is implementing changes in the handling of low-level marijuana offenses in Westchester County. Under this new policy, the possession of small amounts (two ounces or less) of marijuana will no longer result in a criminal conviction negating the collateral damage such a conviction might impose.
The changes in prosecution of these current laws with take effect Monday, Jan. 14, 2019:
• Unlawful Possession of Marijuana (Penal Law § 221.05, a Violation)
• Criminal Possession of Marijuana in the Fifth Degree (Penal Law § 221.10, a Class B misdemeanor)
Specifically, the District Attorney’s Office will no longer prosecute (i) the violation offense in Penal Law §221.05, Unlawful Possession of Marijuana, and (ii) the B misdemeanor offense in Penal Law §221.10 (2), Criminal Possession of Marijuana in the Fifth Degree, based on the possession of an aggregate weight of more than 25 grams, provided the person is only charged with those offenses.
Regarding the second charge, the DA’s Office will prosecute the B misdemeanor offense in Penal Law §221.10 (1) only as a violation (under Penal Law §221.05 for the Unlawful Possession of Marijuana) when a person possesses, in a public place, burning or publicly viewable marijuana, provided the person is only charged with this offense. This will avoid the stigma of a criminal record for many of our young people with long-lasting negative consequences disproportionate to the minor nature of the offense.
The District Attorney’s review of the prosecution of lower level marijuana offenses is ongoing and further changes will be announced as they are adopted.
DA Scarpino said, “After a careful review of marijuana cases in Westchester, as well as discussions with police, community leaders and advocates, we have made the decision to change how we prosecute such offenses. This decision not to prosecute specific cases will allow many people to move forward with their lives without the stigma attached to criminal records of any kind, records that cause discrimination in housing, job and school applications. Much of this has burdened our minority communities and we believe it is time to rectify that.”
DA Scarpino added, “This change in how low-level marijuana cases are handled is also aimed at a better use of public resources. What has been spent on arrests and prosecutions can now be used to focus on more serious crimes.”
Beyond this decision, DA Scarpino is urging Governor Cuomo and state legislators to create a uniform approach to prosecuting marijuana offenses and end the disparity currently in place from county to county.
This progressive action by the DA’s Office follows bail reform, which was announced last year at this time. The DA’s Office no longer requests bail for defendants whose cases would not end in a sentence of incarceration, eliminating cash bail for most misdemeanors. The office found bail on non-violent low-level offenses where the defendant was not a flight risk weighed heavily on poorer defendants.
DA Scarpino said, “These reforms in the bail process and marijuana prosecution are illustrations of our commitment to a fairer system of justice that works for every member of our community, no matter where they live, the color of their skin or the amount in their wallets.”
The DA’s Office reserves the right to continue to prosecute all other marijuana-related offenses.