New York Conviction Expungement and Sealing: Criminal Possession of Marijuana and NY CPL 160.59

Can a judge seal my conviction for Marijuana Possession? Is misdemeanor possession of marijuana an eligible crime for sealing purposes under New York Criminal Procedure Law 160.59? Specifically, I was convicted of New York Penal Law 22.10, Criminal Possession of Marihuana in the Fifth Degree, after the police arrested me for smoking marijuana in public. What about my conviction for Fourth Degree Criminal Possession of Marijuana, New York Penal Law 221.15, after the police arrested me with more than two ounces of the green leafy stuff?

Before diving into the answers to your questions, proceed with some degree of confidence. Whether or not a judge ultimately grants your sealing application and motion, know that arguably NY CPL 160.59 became the law of New York State to help people just like you.

Both Fifth Degree Criminal Possession of Marihuana, NY PL 221.10, and Fourth Degree Criminal Possession of Marihuana, NY PL 221.15, are misdemeanor crimes. While the latter is a class “B” misdemeanor, the former is a class “A” misdemeanor offense. Because neither crime is a violent nor sexual offense, on their respective faces both are eligible offenses for sealing purposes. However, because the crimes are eligible ones does not mean that you are an eligible candidate to have your criminal conviction or convictions sealed.

New York State’s sealing law has very strict guidelines that you should review in greater detail with your own conviction sealing lawyer. However, for the cursory analysis here, if your last criminal conviction, including any time you spent incarcerated, was at least ten years ago, you have no more than two criminal convictions of only one is a felony offense, and you currently are not under indictment or involved in any criminal proceedings, then you likely would be able to petition, apply or motion your sentencing court to have your PL 221.10 or PL 221.15 conviction sealed.

A non-victim crime, upon drafting your motion, supplying a certificate of disposition, setting forth the facts of your case and arguing the overall benefit to not merely you, but society, among other things, to have your case sealed, the local District Attorney’s Office that prosecuted you will have the opportunity to challenge your sealing request within 45 days. Should they do so, a court would then be required to grant a hearing to determine whether he or she should seal your criminal record. What have you done to better your life? Have you had substance abuse issues and what steps have you taken to address them? Simply, how has this conviction adversely impacted you in your life?

A judge may ask as part of his or her consideration some of the above questions, but there is a matter of law that likely will not be lost on the judge and that both you and your conviction sealing attorney should be prepared to answer. Because a first time misdemeanor marijuana possession offender is entitled to what is called a Marijuana Adjournment in Contemplation of Dismissal, or Marijuana ACD, and a second time offender with an open case would likely at worst be offered a violation of Unlawful Possession of Marijuana, New York Penal Law 221.05, it will not be lost on your judge that your conviction could very easily have been at least your third brush with the criminal justice system if not fourth or fifth. Simply, first time offenders in New York are not convicted for misdemeanor marijuana offenses. In other words, you and your counsel should be prepared to address why, as potentially a third time offender or worse, the court should give you the benefit of the doubt when you had a proven track record of failing to comply with the law.

Let’s be clear. Marijuana crimes in New York are some of the least significant criminal offenses in the New York Penal Law, but they are still crimes. CPL 160.59 was drafted, in part, to provide relief for those convicted of low level misdemeanors. However, because of the nature of these crimes and laws reflecting the relatively nominal nature of them, a risk remains that your sentencing judge will want to know why now, after being given multiple opportunities to avoid a criminal record, you are worthy of a sealed and non-public criminal conviction.

Again, the good news is that assuming you are eligible there are few crimes “begging” for sealing more than low level marijuana offenses. But do not be naive. Do not take this opportunity for granted. Educate yourself and advocate from a place of strength. Your sealing motion should be as detailed and thorough as it is compelling and convincing. With possibly one attempt to convince your sentencing judge – your future is in your hands.

To learn about marijuana crimes and the sealing provisions of New York Criminal Procedure Law 160.59, read this blog, follow the links to the Saland Law PC Criminal Conviction Sealing Information Page, and take a moment to check out the CPL 160.59 Conviction Sealing Quiz.

Saland Law PC is a New York criminal defense firm serving clients in criminal conviction sealing and CPL 160.59 motions throughout the State of New York.

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