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Erie County DA won't wait for Albany on marijuana decriminalization

Erie County District Attorney John J. Flynn is not going to wait for a bill that decriminalizes the possession of small amounts of marijuana to take effect in New York.

And with moves announced Wednesday, the county’s top prosecutor said it’s time to ask whether further steps towards marijuana legalization are really needed.

During a news conference Wednesday morning, Flynn said anyone who possesses 2 ounces or less of marijuana in Erie County will be charged with a violation, rather than a misdemeanor.

And anyone seeking to have a low-level possession conviction sealed should make a motion in court and his office will sign off on it.

“I’m basically not going to wait for the governor to sign the bill,” Flynn said.

The State Legislature passed a bill that makes a marijuana possession offense that had been a Class B misdemeanor a noncriminal violation. The bill also would automatically expunge those low-level marijuana convictions from a person’s criminal record, Flynn said.

“I don’t think it’s fair to have this hanging over people’s heads until the bill becomes law,” he said.

While Gov. Andrew M. Cuomo is expected to sign the bill into law, it would not take effect until 30 days after he signs it.

While Flynn's office can’t expunge records, the next best option is to have those records sealed, Flynn said. Expunged records are permanently wiped out, while sealed records are no longer visible in a person’s criminal history – though they can be seen in some application processes, like for jobs in the military, he said.

Normally, those convicted of violations automatically see those charges sealed, the district attorney said.

“Sealing is better than nothing,” he said, noting that people applying for financial aid for college would benefit from such a move.

[Decriminalizing pot possession: What could it mean?]

While a measure to legalize recreational marijuana failed to gain the approval of legislators in Albany during the session that ended last month, lawmakers did pass a decriminalization bill. In addition to provisions about decriminalizing less than 2 ounces and expunging records, the bill lowers the maximum fine for up to an ounce of marijuana possession to $50 and eliminates the option of a jail sentence of up to 15 days. The bill also makes possessing marijuana in public view or burning it in public a violation, rather than a misdemeanor.

Flynn is encouraging those who have prior convictions in Erie County for fifth-degree criminal possession of marijuana, a class B misdemeanor under state penal law 221.10, to file a motion to have their criminal records sealed. The process does not require hiring a lawyer, he said.

The decriminalization bill awaiting the governor’s signature makes no change to the part of state law that gives law enforcement the ability to search a vehicle when officers notice an odor of marijuana coming from inside, Flynn said.

With the actions announced Wednesday, which Flynn said address concerns about the way marijuana laws have been enforced with a disproportionate effect on racial minorities, the district attorney said he wonders whether marijuana legalization remains necessary.

“I think the question now has to be raised and the question is, haven’t we gone far enough now? Why do we need to legalize marijuana now, if you think about it?” he said.

The major argument in support of legalization involves money to be made, including revenue through taxation.

Flynn said he’s not weighing into the matter with an opinion, but asking the question. He pointed to opposition to legalization among many medical professionals.

“The question is, are we going to put money, are we going to put the almighty tax dollar, are we going to put that above the health and safety of our citizens?” he said. “I don’t know. I think we need to debate about that.”

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