Cannabis (Marihuana) and Expungement Under New York State Law

Under New York State Law, effective March 31, 2021, it is no longer a crime to smoke or possess limited amounts of cannabis (marihuana or marijuana).

Article 221 of the New York State Penal Law which contained the marihuana charges that made the possession, use, and sale of marihuana illegal, is no longer in effect. That section has been replaced with a new section, NYS Penal Law article 222.

Under the new law, some marihuana charges are automatically expunged, and the list of charges that are eligible for expungement have been expanded. Other charges require a motion of application to be submitted to the Court.

Expungement means that the arrest, the court case, and the conviction are now treated as if they never happened. For a definition of expungement see CPL 1.20 (45). Charges that have been expunged:

will not appear or show up on a criminal history background check.

cannot be used against an individual when applying for housing, student loans, or a job.

will not be found by law enforcement unless you are applying for a gun license or a job in law enforcement.

do not have to be listed on a job or school application that asks if you’ve been convicted of or arrested.

Automatic Expungement

Convictions for certain marihuana/cannabis-related offenses (possessing up to 16 ounces or selling up to 25 grams of marihuana/cannabis), are now eligible for expungement.

The following convictions will be automatically expunged — without filing any motions and without any fees. You do not have to do anything.

PL 221.05 Unlawful Possession of Marihuana in the Second Degree
PL 221.10 Unlawful Possession of Marihuana in the First Degree
PL 221.15 Criminal Possession of Marihuana in the Fourth Degree
PL 221.20 Criminal Possession of Marihuana in the Third Degree
PL 221.35 Criminal Sale of Marihuana in the Fifth Degree
PL 221.40 Criminal Possession of Marihuana in the Fourth Degree
PL 222.10 Restrictions on Cannabis Use
PL 222.15 Personal Cultivation and Home Possession of Cannabis
PL 222.25 Unlawful Possession of Cannabis, and
PL 222.45 Unlawful Sale of Cannabis

If the Court finds that the only controlled substance involved in a particular case was concentrated cannabis (hashish), then convictions for the following offenses will also be automatically expunged.

PL 240.36 Loitering in the First Degree
PL 220.03 Criminal Possession of a Controlled Substance in the Seventh Degree, and
PL 220.06 Criminal Possession of a Controlled Substance in the Fifth Degree

Notification

The Court will not send out notices to individuals that a case has been expunged, but the Division of Criminal Justice Services (DCJS), the police, District Attorneys, and other law enforcement agencies will be notified of the expungement.
If you would like to know whether your marihuana related conviction has been expunged, you can request a certification of disposition from the Court where the case was decided.

Suppression of NYS Penal Law Article 221 Convictions

Under the law, the Courts have up to two years to expunge most convictions. However, in the meantime, ALL eligible convictions for violations of Article 221 of the NYS Penal Law (the old Marihuana statutes) have been suppressed. Suppression means these convictions are no longer showing up in criminal background check searches run through the Courts or the Division of Criminal Justice Services. The Courts will be working through all the eligible convictions on a rolling basis to expunge and seal them as soon as possible.

Violations of the following sections will be suppressed:

PL 221.05 Unlawful Possession of Marihuana in the Second Degree
PL 221.10 Unlawful Possession of Marihuana in the First Degree
PL 221.15 Criminal Possession Marihuana in the Fourth Degree
PL 221.20 Criminal Possession of Marihuana in the Third Degree
PL 221.35 Criminal Sale of Marihuana in the Fifth Degree, and
PL 221.40 Criminal Sale of Marihuana in the Fourth Degree

New Law: Criminal Procedure Law
(CPL) 440.46 a (2)

Please Note: For Offenses listed above that are eligible for automatic expungement, this motion is not necessary.

For convictions of marihuana/cannabis related offenses that are not eligible for expungement, CPL 440.46 a (2) provides a process to apply to the Court to:

Vacate the conviction.
Dismiss or reduce the charges.
Reduce the sentence.

This does not happen automatically. A motion must be filed with the Court where the conviction occurred. Please use this form to file a motion under this section. CPL 440.46-a Fillable form.

Potential Immigration Consequences

Non-US Citizens may wish to speak with an immigration attorney before taking any additional steps regarding their criminal record. They may need to file a different type of motion even if the conviction is eligible for automatic expungement.