The New York Criminal Law Blog

New York Moves Towards Marijuana/Marihuana Decriminalization?

Could it be? Is New York, much like California, going to be a haven for hashish? A Mecca for marijuana? A wonderland for weed?

You get the point. And yes, they might just be headed in that direction. According to The New York Times, Mayor Bloomberg has reversed his previous pro-enforcement stance and has joined Governor Cuomo’s proposal to curb the number of cannabis arrests resulting from police stop and frisks.

The issue stems from the constitutionally-questionable stop and frisk tactics of the NYPD, which we have already debated the merits of.

New York has two distinct charges for pot possession under 25 grams. There is the violation charge, which is not a crime. It is merely a $100 ticket, which is the same as California’s penalty. However, if the possession occurs in “public view,” it can be (and has been) charged as a misdemeanor offense, resulting in a criminal record for those stopped and frisked while holding.

The practice, as a whole, would have been legally questionable before the law change. To use an analogy to alcohol offenses, if someone is drunk in public in most states (not New York) they can be charged with a crime. However, if a cop pulls them out of their house and then charges then with public intoxication, the charges would be dropped, as they were not in public of their own volition.

The misdemeanor offense involved the hemp being in public view. However, it was only in public view because officers forced the “criminals” to pull it out of their pockets. A constitutionally-questionable stop and frisk leads to a constitutionally-questionable misdemeanor offense.

(Something tells us the reason for Bloomberg, Cuomo, and the Commissioner’s change in course had to do with a lot of angry criminal defense attorneys.)

The timing of Governor Cuomo’s proposal is curious. Just last September, the Police Commissioner issued a directive to officers ordering that they stop charging the offense as a misdemeanor when it resulted from a stop and frisk, referencing the volition rationale. Cuomo’s call is essentially to change what has already being changed.

Then again, should we be surprised by governmental redundancy and bureaucracy?

Also, can New York please start spelling it “marijuana” instead of “marihuana”? Google tells us that the latter is the Spanish language spelling, not English. Though bilingualism is an noble goal to strive for, randomly using Spanish spellings in statutes and police memos makes research much more difficult.

Related Resources: