Articles Posted in Marijuana

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NEWS FLASH: New York’s marijuana possession laws have changed.

You may have heard that New York has taken steps to “de-criminalize” marijuana possession, but you should not take this to mean that “weed has been completely legalized.” What New York HAS done is increased the amount of marijuana for which a “violation” offense may be charged in lieu of a crime. Of critical importance is the fact that a person convicted for a violation does not incur a permanent criminal record. Despite the changes to the law, people can still be arrested, charged, and fined for possessing a small amount of marijuana and these incidents may still lead to devastating immigration consequences.

Under New York’s now-replaced marijuana laws, it was a violation to possess any amount of marijuana under twenty-five grams, but there was a huge caveat: it was a crime to possess any amount of marijuana in a public place that was also “burning” or “open to public view.” In other words, just holding a blunt was enough to put you on the hook for a misdemeanor. Conversely, it was only a violation (and not a crime) to carry a bag of marijuana in your pocket, in the glove compartment of your car or in the privacy of your home. Under the old laws, anyone who possessed a quantity of marijuana over twenty-five grams (even if it was hidden away somewhere) was subject to criminal charges.

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If you are reading this blog, you may be one of the many people under the impression that smoking and possessing marijuana in New York City is now legal. Or, perhaps you’ve been issued a summons accusing you of doing so. First of all, marijuana possession is still illegal in New York City and State, and such will be the case unless and until the legislature acts to amend the law.

What has changed however, is the New York Police Department’s approach to marijuana arrests. In short, you can absolutely still be charged with a crime if caught smoking or possessing marijuana in public. The NYPD, however, has announced that it will cease making full-blown arrests and instead will issue summonses in these cases with limited exceptions (if the person they stop is on probation or parole, has outstanding warrants or a history of violence, or is in violation of another law (ie, DWI drugs).

A summons is a pink ticket handed to you by a police officer which can charge you with a crime or a violation. If you receive one, it means you have been commanded to answer misdemeanor and/or violation charges in a Court of law. Failure to abide by the summons and appear in Court can and will result in a warrant being issued for your arrest. So you (or a lawyer who can go on your behalf – see below) must answer the ticket personally.

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Manhattan District Attorney Cyrus R. Vance, Jr. recently announced a change in policy that will soon effect many low-level marijuana offenders in Manhattan. To those who smoke and possess marijuana in New York City, the message was clear: he does not want to prosecute you. The new policy will be aimed at countering the NYPD’s proven disparate treatment of racial minorities in the form of unequal enforcement of the marijuana laws, as well as reduce the number of low-level cases that are handled in the City’s Courts by the thousands. Echoing Vance’s desire to reduce unnecessary arrests and disparity in the enforcement of the law, Mayor Bill De Blasio announced that the NYPD would be required to overhaul it’s marijuana policy as well.

Vance’s policy change comes on the heels of a disturbing (albeit unsurprising) study which revealed that African-Americans are arrested for low-level marijuana offenses at a rate 8 times that of whites in New York City, and 15 times more than white people in Manhattan alone. The critical component of the study of course indicated that both African-American and white folks use marijuana at the same rate.

In light of these (and other) statistics, beginning on August 1, 2018, the Manhattan District Attorney’s Office will simply stop prosecuting low-level criminal cases involving smoking and possession of marijuana, with few exemptions. Yes, you read that correctly: If you are arrested for smoking a marijuana cigarette, joint, blunt or pipe in public, or otherwise possess a small enough quantity of marijuana, the Manhattan DA’s office will not prosecute you as of that date. DA Vance expects that the number of marijuana cases handled by the system annually to be reduced from roughly 5,000 to 200 as a result.

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New York City owes much of its energy and excellence to the foreign citizens living and working here. Unfortunately, a visa or green card holder’s right to remain in the United States can be seriously jeopardized by a Desk Appearance Ticket, even when the charges are comparatively minor misdemeanors. Many visa holders fail to take these arrests sufficiently seriously because the charges seem minor (like marijuana or subway fare theft) or because the arresting officer tells them “it’s no big deal.” Truthfully, though, career, educational, and family plans can be completely devastated by even a minor case of walking through the subway gate without paying, so it is absolutely critical that a foreign person arrested and issued a Desk Appearance Ticket retain competent counsel immediately.

In many ways, a Desk Appearance Ticket does not feel like such a big deal. The arrested person is usually handcuffed and taken to a police station where they are fingerprinted. They typically wait a few hours in a holding cell until they are given a piece of paper telling them the date and location of their appearance in court. Before Desk Appearance Tickets became routine, criminal defendants could expect to get “sent downtown” and spend the night in jail before seeing a judge. Obviously, Desk Appearance Tickets are preferable for criminal defendants because they spend less time in custody and also have the opportunity to choose counsel for themselves prior to going to court.

Make no mistake, however: the issuance of a Desk Appearance Ticket is in fact an arrest – it is not “just a ticket”. More importantly for visa holders, this event is not going to “fly under the radar” with the immigration agencies. If you were arrested and given a Desk Appearance Ticket, your fingerprints and the arrest charges have been sent to a New York state agency (the Division of Criminal Justice Services) and to the FBI, which maintains a federal nationwide law enforcement database of all arrest events across the United States (the Interstate Identification Index). Visa and green card holders should understand that the immigration agencies, in processing visa renewal requests, access this database to investigate whether the visa applicant has an arrest record. Indeed, some visa holders actually receive emails from Department of Homeland Security (Immigration & Customs Enforcement) agents after their arrests, because the agency was notified of the arrest via the fingerprint database.
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H1B visas (allowing foreign citizens with highly specialized expertise in the areas of math, science and engineering, among others, to live and work in the United States) are highly sought after and not easy to get due to the limit – or “cap” – on the number of such visas granted each year. There are many highly-qualified professionals working in New York thanks to the H1B visa program, and they are welcome additions and assets to the community.

Unfortunately, even a minor arrest can derail an application or renewal for an H1B visa. The attorneys at The Law Office of Matthew Galluzzo have represented many individuals with H1B visas who have received Desk Appearance Tickets for misdemeanor arrests, including, among other things: Theft of Services (PL 165.15), Petit Larceny (PL 155.25), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Mischief (PL 145.00), Unlawful Possession of Marijuana (PL 221.10), and Assault in the Third Degree (PL 120.00). Some of these cases are oftentimes resolved with adjournments in contemplation of dismissal (“ACDs”) that would generally be considered to be favorable dispositions. However, ACDs typically involve six month waiting periods before the cases are dismissed, and any people who need to apply for or renew their H1B visas during that six month period are precluded from doing so (and thus unable to remain in the United States at their chosen and hard-earned job). Put plainly, an H1B visa will not be renewed if a criminal case is pending or if the ACD waiting period is still outsanding. This effect has also been noted in the context of other visa applications, such as F1 and J1 visas.

While these are generally not considered the most serious of cases, for visa holders, even these comparatively minor criminal cases can impact your life, career and renewal applications in a number of other ways. For example, convictions for these crimes can result in job loss, permanent criminal records, deportation or inadmissibility, fines, and potentially even jail time. A criminal case should never be taken lightly, but foreign citizens with visas need to be even more mindful of the consequences of an arrest.

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Individuals without criminal records arrested for misdemeanors in New York City are routinely charged by way of a Desk Appearance Ticket. Though individuals issued Desk Appearance Ticket do not spend twenty-four hours in prison awaiting arraignment like other defendants, their cases are no less serious than those misdemeanor cases pursued the “traditional” way (in which defendants do not get released from custody until they are arraigned before a judge the day after their arrests). One of the advantages for defendants issued Desk Appearance Tickets (as opposed to the “traditional way”) is that they have an opportunity to seek counsel of their choosing for their arraignments. As a result, the attorney-authors of this blog are routinely asked: “Should I hire an attorney for my Desk Appearance Ticket?” Our typical answer: only if you care about your future, your career, or your family.

Public defenders are available for indigent defendants at arraignments on Desk Appearance Tickets. However, if you are not indigent, then you do not qualify for a public defender, meaning that you will have to return with a privately-retained lawyer anyway. Even if you do qualify, technically, for a public defender, you should consider various other reasons for hiring a private attorney. First and foremost, you will be unable to speak to a public defender in advance of your court date, whereas a private defense attorney can meet with you and prepare you and answer your questions in advance of your court date. Also, defendants with private attorneys are usually seen by the judge first and can typically leave before 10:30 am; those people relying on public defenders may find themselves waiting in line all day to talk to an attorney, and waiting to see a judge well into the afternoon session. If your case lasts beyond the arraignment, you may find it extremely difficult to get ahold of a public defender, as they are typically responsible for hundreds of criminal cases at a given moment and are often unable to respond to voicemails; in contrast, a private lawyer presumably has more time to answer your phone calls and questions and meet with you in the office. The private attorneys at our office, unlike public defenders, will continue to work on your case after its done to ensure that where, if applicable, the records of your arrest have been properly sealed and the matter cleared from the public domain. Finally, the attorneys at our office, unlike public defenders, can sometimes in certain types of cases assist out-of-state residents, students, or foreign citizens by appearing for them in lieu of personal appearances.

Most importantly, though, these matters are important and must be taken seriously. A criminal conviction – even for a misdemeanor – can create permanent obstacles to employment, naturalization, university admission, and more. There is no expungement of criminal convictions in New York, so a criminal conviction for even a misdemeanor is a permanent matter of public record and can haunt a person for the rest of his or her life. FINRA-licensed brokers can unwittingly jeopardize their careers in seemingly trivial matters, and non-citizens can prevent themselves from being able to stay in the United States in accepting a disposition that seems otherwise reasonable. These are mistakes that can be avoided with the advice of good and prepared counsel.

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New York City is home to a plethora of fantastic and popular nightclubs. LAVO, 1OAK, Webster Hall, Cielo, the Sullivan Room, subMercer, Pacha, RdV, Bossa Nova Civic Club, Tenjune, the Village Underground, Bembe, Club Macanudo, the Woods, bOb Bar, and the 40/40 Club are just a few of the clubs that New Yorkers and people from around the world visit to dance and have a great time in the city. Undercover narcotics officers have prowled nightclubs and attempted to buy drugs from dealers operating inside the clubs for a long time. However, as nightclubs in New York come under more pressure from law enforcement authorities to ensure that their establishments are drug-free, more and more people are being arrested as a result of searches by private security guards and bouncers patrolling the nightclubs. For example, one popular dance club in Manhattan, Webster Hall, has instituted a policy of routinely frisking people seeking admittance at the front door to ensure that they are not attempting to bring any drugs inside. We are aware of one recent incident in which a female bouncer at the entrance to Webster Hall reached into the bra of a woman trying to enter the club, and in so doing, discovered MDMA (ecstasy) inside her bra. This woman was then referred to the police at the 9th Precinct, who arrested her and gave her a Desk Appearance Ticket for a violation of Penal Law Section 220.03 (a Class A misdemeanor punishable by up to one year in prison).

Notably, the security guards at private clubs are not normally required to adhere to the Fourth Amendment rules about unlawful searches and seizures. Obviously, the Fourth Amendment instructs that police officers are not allowed to frisk someone without sufficient cause to do so, and any evidence obtained by an unlawful police seizure is inadmissible in court per the doctrine known as "fruit of the poisonous tree". Thus, because private security guards at clubs are not generally constrained by the Fourth Amendment, a prosecutor can admit into evidence drugs that were obtained from a search by a private security guard that would have been inadmissible if performed by a police officer.

However, these club-search cases are very defensible in a number of ways. First, there can be serious chain of custody issues in these cases; a skilled defense attorney may be able to demonstrate that the private security guards failed to properly secure or keep track of the drugs once seized, or that they were intermingled with drugs seized from some other patron. In those cases, the prosecution may be unable to reliably attribute certain drugs to certain individuals, as required at a trial. Moreover, these private security guards often have not received nearly the same degree of training as police officers, and they also may not be as accustomed to being as diligent with respect to their paperwork. Accordingly, the credibility and reliability of the testimony of these bouncers and security guards may be very contestable at trial.

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Arrested for Possessing a Small Amount of Marijuana

While the issuance of criminal court desk appearance tickets may have gone down in light of a re-energized debate as to the wisdom of continued illegality of marijuana, the number of NYC marijuana summonses or pink summonses issued appears to have increased. This occurrence probably has as much to do with the relaxed views on the harmful effects of marijuana as it does with the protestations of the defense bar and others that misdemeanor marijuana arrests were often times predicated on illegal or questionable practice of ordering an arrestee to empty his or her pockets only to be told that upon compliance the marijuana was now “open to public view” thus elevating the charge from a violation to a misdemeanor. Whatever the cause, people who have received a marijuana summons in New York City need to know that they have the right to pursue a result which keeps their criminal records not only conviction-, but also arrest-free. The full text of the statute regarding marijuana violations is below:

§ 221.05 Unlawful possession of marihuana. A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter, committed within the three years immediately preceding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period.

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Marijuana Charges

Arrested for Possessing a Small Amount of Marijuana

This post examines the New York City Desk Appearance Ticket for Marijuana Possession given in cases involving possession of a small amount of marijuana. A typical scenario will involve a group of people gathering somewhere outdoors, outside a bar, or simply walking down the street, passing around a joint, marijuana cigarette, or a pipe containing burning marijuana. The police would appear out of nowhere, seize the drugs, and arrest the people. Arrestees will typically be brought to the local police precinct, fingerprinted, photographed, and then issued a Desk Appearance Ticket. This ” Marijuana D.A.T.” will oftentimes charge a person with a marijuana misdemeanor. The ticket itself will say: Top Offense Charged: PL 221.10 01. That charge, in full form, reads as follows:

§ 221.10 Criminal possession of marihuana in the fifth degree. A person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses: 1. marihuana in a public place, as defined in section 240.00 of this chapter, and such marihuana is burning or open to public view; or 2. one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than twenty-five grams. Criminal possession of marihuana in the fifth degree is a class B misdemeanor.

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