In this episode of The Cannabis Community Insider, hosts Abraham Villegas and Penelope Hamilton take you to New York to hear from their special guest, Joseph DeMatteo, Esq. of Bernfeld, DeMatteo, and Bernfeld, to learn about the recent cannabis legalization expungement provisions.

Joseph began practicing law in New York 35 years ago as a prosecutor in the Manhattan District Attorney’s Office, where he prosecuted various cases, including cannabis. After leaving in 1997 he chose to become a criminal defense attorney.

 “I regret ever prosecuting a cannabis case and believe that our entire war on drugs was an insanely costly mistake.  My focus now is on helping people with prior criminal justice involvement overcome barriers to employment and licensing”, says Joseph.

You can reach Joseph DeMatteo at josephdematteo@bernfeld-dematteo.com

www.bernfeld-dematteo.com

New York Cannabis Expungement Provisions | Navigating The New Law with Joseph DeMatteo, Esq

Introduction 00:03

• The video is about New York Cannabis Expungement Provisions.
• The host Abraham and Penelope are joined by Joseph Di Matteo.
• Joseph is an expert in the social and criminal justice field related to New York.
• New York has legalized cannabis, and things are moving fast regarding licenses and business end.
• They are interested in the social justice side of the conversation and how it affects the people in their community.
• Joseph introduces himself as a lawyer who spent the first 11 years of his career prosecuting people in Manhattan.
• He prosecuted marijuana cases and people who were selling nickel bags of marijuana in Washington Square Park.
• He spent 11 years as a prosecutor and then went out and began his private criminal defense practice.
• He is now focused on helping people with prior convictions overcome the difficulties that come with that.

Expungement of Records 04:13

• Expungement is something very new to New York.
• It is not something they generally had, and even a dismissed case had a mechanism that you can go in and look at those records.
• What is happening in New York with marijuana old marijuana convictions under the Marijuana Regulation and Taxation Act (MRTA) is that a mechanism has been provided to get those prior matters dismissed, sealed, and expunged.
• Expunged means that the documents in that file will be marked as expunged.
• The benefit of that is that if anybody sees the record, it’s going to say expunged.
• If an individual wishes, they can request to have their record destroyed, meaning that the police department, court system, fingerprints, photographs, everything actually is burnt.

Pros and Cons of Expungement 05:46

• There are some pros and cons to having something expunged or not.
• For example, if someone had a felony conviction under the controlled substance law in the 1970s, the office of court administration and the New York State Department of Criminal Justice Services should identify their case and dismiss, seal, expunge it, and notify them.
• They then decide whether to destroy or leave that record there, just in case.
• Leaving it there would be helpful in cases where the Department of Homeland Security decides to deport someone because of an old controlled substance conviction.
• They might think it was cocaine or heroin, something more serious than cannabis.

Expungement of cannabis related convictions 07:21

• Joseph DeMatteo explains that he was convicted of a felony for possessing and selling an ounce of marijuana, which is now legal under the new law.
• He believes that by showing a government agency that he was convicted only of marijuana possession, he can stop them from doing something.
• Background check companies purchase criminal records that can affect job seekers. If a record is accidentally released, it could harm the job seeker’s employment prospects.
• Individuals who have had their records expunged may request a copy of those records for their personal obtainment and then request to have the remaining records destroyed.
• Individuals who destroy their records must ensure they present a complete, accurate record when required, or it could harm their credibility.

Offenses subject to expungement 10:39

• In 2019, New York’s Legislature embarked upon an “expungement project” for cannabis-related offenses.
• The offense of possessing more than two ounces of marijuana will be expunged under the new law.
• The criminal sale of marijuana in the fifth degree will be expunged, a sale without consideration of fewer than two grams or just one cigarette joint.
• Any sale for consideration up to four ounces will also be expunged.
• The new law also includes other cannabis-related offenses that will be expunged.

Qualifications for expungement 13:37

• The majority of cases that the Division of Criminal Justice Services (DCJS) and the Office of Court Administration (OCA) will go after first are those that only have marijuana convictions associated with them.
• It may be more difficult for DCJS and OCA to expunge convictions that involve multiple offenses within a particular docket.
• This may include cases where individuals were arrested for smoking marijuana in public and resisting arrest.
• It is unclear what debates led to this particular configuration of the law.

Cannabis as an Entry Method to the Criminal Justice System 15:13

• Cannabis is often seen as an entry point to the criminal justice system.
• Possession of cannabis can lead to other charges, such as resisting arrest or possessing other drugs.
• Cannabis-related charges can often complicate cases.

Expungement Efforts by the Government 16:07

• The Office of Court Administration and DCJS are working to expunge cannabis-related cases.
• Over 200,000 marijuana convictions have been sealed under the 2019 law.
• 24% of people who had an expungement are now left with no criminal record.
• The government is capable of sealing records based on county.

Limitations of the Expungement Law 18:40

• The new statute will not expunge felony possession of more than 10 pounds of cannabis,
• However, possessing more than 10 pounds of cannabis is now a D felony under 220 240.

Challenging Higher Level Felonies 20:24

• If someone is charged with a higher-level felony than what they believe they were supposed to be charged with, they can argue that it’s no longer a crime or a crime of a lesser level.
• They cannot challenge the arrest or conviction based on new evidence or evidence that they couldn’t discover until recently.

Specific Offenses and Expungement Eligibility 21:37

• Any offense related to the sale of more than four ounces of cannabis or the sale to a minor used to be a D felony under the old law.
• However, under the new law, the sale of more than four ounces or the sale to a minor is only an A misdemeanor, making it eligible for expungement.
• If someone was convicted of this offense, they now have recourse to have it expunged.

Serious Cannabis Offenses and Felony Convictions 22:07

• The most serious cannabis offense under the new law is the sale of more than 16 ounces of cannabis, which remains a D felony.
• However, the sale of more than five pounds of cannabis is now a C felony conviction, whereas it used to be a D felony conviction.
• This could result in some people wanting to go back and have their record reflect a D felony instead of a C felony.

Fast-Tracking Expungements 23:23

• There is an interesting provision in the new law that allows individuals to fast-track the expungement process.
• If someone has a prior conviction for something that is no longer a crime, they can go to a court police department, or DCJS and show proof.
• Based on the reading, those actors have to act within 30 days of the request.

Wiping the Slate Clean 24:53

• Joseph DeMatteo believes that anything involving marijuana should be wiped clean from someone’s record.
• He argues that if someone has a prior felony conviction for something like selling five pounds of marijuana 25 years ago, they should not still be marked a felon.
• DeMatteo thinks that, given how attitudes towards marijuana have changed, our attitudes about felony convictions for cannabis should change too.

Cannabis reform advocates and the grassroots movement 28:40

• Most cannabis reform advocates see the issue as broader than just using marijuana to get high.
• They view it as a matter of choice and freedom for individuals to use it medically or recreationally, just like alcohol.
• Since the turn of the 20th century, a small group of people have been trying to hold down the use of marijuana and fight against it.
• The marijuana/cannabis space is a real grassroots-driven movement.

Ineffectiveness of current legislation 30:03

• The government has been obstructive to the whole process of testing and dealing with cannabis.
• They won’t even test it, and reclassification as schedule 2 is ineffective.
• People need to know the benefits and pitfalls of the substance, but the government is not allowing that to happen.

Tips on how to get involved in the process 30:34

• Survey membership to find out how many people have prior marijuana convictions.
• Lobby assemblymen and state senators and the DCJS to have these cases expunged and dealt with promptly.
• People can make it happen even faster.

Importance of expungement for the cannabis industry 33:10

• Licensing is going to go out to people irrelevant to whether they have prior marijuana convictions.
• Most people who are going to be involved in the distribution and growth and processing of cannabis, if they have prior convictions, they’re going to want that wiped off.
• This is necessary so that the business group involved aren’t a bunch of folks who have to think, “Oh my god, I have a prior conviction. Your government just said forget about that. It’s done, clean. There’s no embarrassment to that.”

Possession laws in New York 35:18

• On the street, individuals can have up to three ounces.
• In a private residence, individuals can possess up to six pounds.
• Adults can grow up to six plants, three mature and three immature.
• Non-medical individuals must wait 18 months after regulations are implemented to grow cannabis.
• Sale of over 100 pounds is considered a C felony.
• Sale of over four ounces is considered a D felony.
• New York marijuana laws do not carry mandatory jail sentences even for felony cases.