Marijuana possession cases set to be expunged as courts sift through thousands of records – The Daily Gazette

Sevell Graham remembers being convicted of possessing marijuana in New York as if it were yesterday.

But it was nearly 15 years ago. 

Graham, who lived in Schenectady from 2011 to 2019 and now attends college in Atlanta, said he was in a car with a friend in Oneida County when they were pulled over by police.

His friend, who was on probation, had a bag of cannabis on him. 

“Thinking stupidly, I said it was mine, and I ended up paying,” said Graham, who’s now 33 and grateful that his case might be expunged through legislation that legalized possession of marijuana for adults last year. 

State courts are still sifting through thousands of cases that are set to be tossed because of the law.

As a result of the conviction, Graham, an occasional pot smoker, said he paid about $1,200 in court costs and surcharges, and was required to attend an outpatient treatment center. 

“It was a mess,” he said. “I missed work [as a municipal trash hauler] because I had to attend that program.”

The conviction was also an embarrassment, particularly whenever he went looking for a new job during his eight years in Schenectady.

But over time the stigma decreased, Graham said.

“I felt like every time it came up, I had to present it in a way to where it had just happened, and I didn’t like that,” said Graham, who’s studying civil engineering at Morehouse College.

Graham said he’s happy times have changed, and for last year’s passage of the law.

“I don’t believe this is harmful at all,” he said. “That’s really the bottom line for me, and we shouldn’t be judged for that.”

MASSIVE EFFORT

As part of the Marijuana Regulation and Taxation Act enacted in March 2021, approximately 203,000 marijuana-related charges are presently being suppressed from criminal background searches and are in the process of being expunged. 

This adds to the approximately 198,000 records that were expunged as part of the first round of marijuana expungement following legislation enacted in 2019, said Freeman Klopott, a spokesman for the New York State Office of Cannabis Management.

The state court system is still in the process of quantifying the universe of marijuana convictions that are eligible for expungement. At this point the data cannot be broken out by county, said Lucian Chalfen, a spokesman for New York courts.

Due to the complexity of the initiative, the Legislature gives the state two years from the time it was signed into law to accomplish the expungements, said Chalfen, who added that it is an extremely time-consuming undertaking.

Expungement means that the arrest, the court case and the conviction are now treated as if they never happened, and will not show up on a criminal history background check.

Convictions that will be expunged automatically without the need for individuals to file motions and pay fees include: unlawful possession of marijuana (degrees 1-4); criminal sale of marijuana in the fifth degree; and criminal possession of marijuana in the fourth degree, among other convictions.

The courts won’t send notices to individuals that a case has been expunged. But the Division of Criminal Justice Services, the police, district attorneys, and other law enforcement agencies will be notified, according to the state court system.

 

If someone with a conviction wants to find out whether his or her case has been expunged, a certification of disposition can be requested from the court where the case was decided.

Schenectady City Council member Damonni Farley is a friend of Graham’s, the college student with Schenectady ties. Farley said the topic of expungement is “near and dear” to him in his work with young people in Schenectady.

Farley works as director of community outreach for the Schenectady City School District, and he said he has witnessed the impact of marijuana convictions on young people over the years.

“In order to rectify the disproportionate impact of criminalization and mass incarceration on marginalized communities, we must take intentional steps to ensure equity in ownership in the now-legalized cannabis industry,” Farley said in a statement.

“We must also look to support training programs in horticulture, technology and culinary programs that can allow Schenectady youth to develop the knowledge and skills to gain employment in the rapidly growing cannabis sector.”

OUT IN THE OPEN

In Saratoga Springs, local Black Lives Matter activist Lexis Figuereo said he stands to have at least four marijuana possession convictions expunged from his record. 

Figuereo said one case — when he was charged stemming from a vehicle stop in Ballston Spa last year — was already dropped by the courts because it occurred just weeks before the possession law went into effect.

Figuereo suggested that marijuana possession laws were originally intended as a means for law enforcement “to mess with” Black men, who are known marijuana consumers. 

Figuereo said he hasn’t been shy about his marijuana use, and in the past, it’s cost him.

“There was a concert in Saratoga Springs — a crazy hippie concert where everybody’s doing psychedelics and all types of drugs,” Figuereo said. “And I happen to be outside of Ben & Jerry’s in the parking lot. I was in my car and with my friends, and we were rolling up [marijuana], and some of the smoke [emitted] from the car.” 

Figuereo said he was miffed at being charged considering all that was occurring around him at that time. But he said he eventually received an adjournment in contemplation of dismissal for the charge.

While being arrested for possession of pot was an inconvenience, the BLM activist said his ability to keep a job hasn’t been hindered.

“I’m a server and a bartender, and in our industry you really don’t have to worry about that,” he said. 

But there were times it stopped him from applying for certain jobs, such as with the U.S. Postal Service and long-distance driving or delivery positions, the activist said.

“I figured I probably would not get the job anyway because things are gonna pop up,” Figuereo said.

No longer saddled by the stigma of smoking, it’s not uncommon for Figuereo and his BLM counterparts to smoke pot openly prior to some of their protests. 

Figuereo said the openness marks a complete shift for Black and brown people who’ve been disproportionately arrested for marijuana possession.

“That’s just plain and simple,” he said. “I’ve had white friends who have told me, ‘I walk around with mushrooms in my pocket every day, and LSD, and I never get stopped by the cops,’ ” he said.

“I smoke a joint and cops would roll up on me like I’m selling crack or something.”

‘WASTE OUR TIME’

Members of law enforcement reject the notion that possession laws intentionally targeted any individual group.

Fulton County Sheriff Richard Giardino, a former prosecutor and judge with conservative leanings, is one of them.

Giardino suggested it was easier for law enforcement to make street-level arrests in urban areas as opposed to rural areas where transactions and possession are primarily in the home.

“Part of it is that the demographics of the sales are in congested areas, in certain neighborhoods and things,” he said.

Giardino said he is fine with the law expunging possession cases.

But he suggested that a person’s DNA or fingerprints should remain in the system as a result of certain marijuana possession convictions because this could help law enforcement potentially solve future crimes.

“And I don’t care what color that person is: white, brown or Black,” Giardino said. “If they’ve committed a felony or misdemeanor and we have their fingerprints or DNA on file, then there should be some conversation about, maybe five years without another arrest or three years after probation without another arrest. I think all those conversations are legitimate as to what’s the appropriate time to wait for expungement of a record.”

Meanwhile, Giardino said his department has taken a hands-off approach concerning dealing with people who use marijuana in public since the law went into effect.

“We have not been entertaining any minor arrests,” he said. “We do get some complaints of people going to a public area. I guess the rule of thumb is if you can’t smoke a cigarette there, you can’t smoke marijuana there.

“But we’re not going to waste our time and resources on something that’s not a crime,” he said. “We have gotten some issues with people self-growing more amounts than is legal. But it’s all in transition. There’s a lot of confusion.”

At the same time, Giardino expressed concern about the lack of drug recognition experts in the state.

These are police officers with special training to recognize impairment in drivers under the influence of drugs. They can check a driver’s eye movement and detect impairment by the inability to properly perform certain neurological tests.

Giardino says he doesn’t have any drug recognition experts on staff. But he has access to experts from the state police in Fonda, or when available, experts from the Amsterdam Police or the Saratoga County Sheriff’s Department.

“We can still take a blood test,” Giardino said.

But a blood test can only determine the presence or absence of marijuana. It doesn’t determine if a driver had recently smoked and is under the influence. It could be that he or she has marijuana in their system from chronic use, which can be problematic in proving the case in court.

Giardino said he’s unsure if there’s a correlation between the legalization of pot and an increase in fatal or serious vehicle accidents caused by marijuana use. The sheriff said he believes the data from other states is inconsistent.

CONGRESSIONAL PUSH

Two members of Congress, including one from New York, have launched a bipartisan effort to incentivize all states to expunge the criminal records of those who have been previously convicted of marijuana offenses.

U.S. Reps. Dave Joyce, a Republican from Ohio, and Alexandria Ocasio-Cortez, a Democrat from New York, recently launched legislation to incentivize state and local governments to expunge the criminal records of those who have previously been convicted of marijuana offenses. 

Their bill, titled the Harnessing Opportunities by Pursuing Expungement Act, seeks to appropriate $20 million to the U.S. Attorney General for the purpose of financially assisting states and local governments with the process of reviewing and expunging cannabis convictions.  

Ocasio-Cortez did not respond to a request for comment, but in a statement, she said: “As we continue to advocate for the decriminalization and legalization of marijuana, this bipartisan bill will provide localities the resources they need to expunge drug charges that continue to hold back Americans, disproportionately people of color, from employment, housing and other opportunities.”

David Holland, executive director of Empire State NORML, an advocacy group that stands for the National Organization for the Reform of Marijuana Laws, said the proposed bill is well-intended but questionable in regard to its legality.

Under the HOPE Act, the bill is requiring the U.S. Attorney General, the top law enforcement official for the country, whose job is to uphold the federal prohibition on marijuana, to set aside monies to expunge state criminal convictions related to marijuana, Holland said.

Not only does the U.S. Attorney General not have the power to tell states how to operate their criminal justice systems, but those states passed their criminalization of cannabis laws because of the federal prohibition that is still the law of the land, said Holland, a lawyer.

“So the HOPE Act is really trying to get the U.S. Attorney General to expunge criminal convictions for the illegal use of marijuana under state laws which were developed as a result of the federal prohibition in the first place. A kind of absurd scenario, but that’s what it is as a result of the continued irrational perpetuation of marijuana as a Schedule I drug,” Holland said. 

Holland lauded the two members of Congress for their efforts “to try and correct the devastating impact that a cannabis conviction can have on the life of the accused.”

However, Holland said they need to pass legislation that is not “piecemeal” and avoids the bigger issue.

“It is time for Congress to take affirmative action and ‘deschedule’ cannabis from the federal controlled substances act,” he said. “The HOPE Act does not come close to addressing that true problem.”

Contact reporter Brian Lee at [email protected] or 518-419-9766.

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