The absence of a solitary Roman numeral in a state law text causes mass confusion as individuals with specific convictions attempt to expunge their criminal records.
The new marijuana law in New York seems to be causing some complications.
The omission of a single Roman numeral in the text of state law has caused some people with certain convictions to have difficulty clearing their names.
But even as legalization took effect and New Yorkers could smoke with impunity.
Frederick Volkman was sent to a maximum-security prison after violating the terms of his probation on a 2019 felony marijuana charge. Locked up with violent criminals, he did his best to avoid confrontations. Thanks to the 2021 law, Mr. Volkman is one of the few remaining prisoners in New York incarcerated solely because of marijuana charges. When New York legalized recreational marijuana two years ago, it was supposed to help break the cycle of incarceration that being convicted of possession had long paved.
Legalization offered offenders a clean slate by wiping convictions from their records, a crucial step toward turning their lives around by making it easier to apply for a job or loan, rent an apartment, or obtain a professional license. Expungement was a pillar of the law’s promise to reverse the consequences of the war on drugs. He will return to a world where marijuana is openly sold from storefronts and vending trucks, its aroma filling the air and from moving cars. But as many New Yorkers light up freely, complications created by the law linger, including thousands of uncleared felony charges that recall the state’s earlier, draconian approach to prosecution. The 2021 law expunged 107,633 convictions, and a 2019 law that decriminalized small amounts of marijuana cleared 202,189 more.
Those convictions were largely for lower-level offenses.
The situation is more fraught for people like Mr. Volkman, who have felony convictions for large quantities of cannabis. Most of the nearly 9,000 felony marijuana convictions remain on offenders’ records long after serving their sentences. In addition, scores of minor marijuana convictions that accompanied more serious crimes cannot be expunged automatically despite the law requiring it.
Advocates say most of the criminals didn’t even seek acquittal of the charges against them—some because they didn’t know the new law allowed it, others because they thought it would happen automatically, and still others because of the arduous application process.
A judge in Dutchess County, north of New York City, rejected one man’s motion to clear his record of a felony marijuana conviction. In a move that will most likely set precedent for similar challenges, the man is appealing the ruling. The fact that a single digit was omitted from the legislation — the Roman numeral i — has prevented felons from filing a straightforward form to receive a conviction reduction.
But elsewhere, some convictions are being opposed, a development that advocates described as troubling. Motions to clear criminal records of felony convictions must be drafted and submitted in the county court where the conviction was imposed, with the approval of the district attorney’s office that prosecuted the original crime. But in more liberal counties, this process has largely sailed through.
A judge in Dutchess County, north of New York City, rejected one man’s request to have his felony marijuana conviction cleared from his record. In a move that will most likely set precedent for similar challenges, the man is appealing the ruling.
Not everyone is eager for automatic forgiveness.
A judge in Nassau County, on Long Island, issued a similar decision against a man who was seeking to have his felony marijuana possession charges wiped away. And after an upstate district attorney opposed a man’s motion in another case, it was denied by a judge.
Mr. Graubard pleaded guilty and served nearly two years in prison. He says the felony is the only blemish on his record and has kept him from achieving his goal of becoming a schoolteacher, blocked him from getting other jobs, and deterred him from applying for a home equity loan. The judge agreed and merely downgraded the conviction to a lesser felony.
Mr. Graubard is appealing the decision. His lawyer, Wei Hu, argued before a four-judge appellate panel last month that the “statutory defect”— the typo — in the 2021 law should not affect his client. Because the possession of large quantities of marijuana is still a crime under the new law, including Mr. Graubard’s felony offense of transporting 114 pounds, William Grady, Dutchess County’s district attorney, opposed Mr. Graubard’s motion to have his record wiped clean.
In the phone interview, he said it felt incongruous to still be imprisoned for cannabis after it had been legalized. Under a plea agreement, Mr. Volkman, who goes by Derick, served five months in county jail but then violated his probation by failing drug tests for marijuana, which he said he had smoked since he was 13 to settle his mood and anxiety.
As for Mr. Volkman, who state records indicate is one of just two remaining marijuana-only offenders in prison, he filed a motion after the 2021 law passed to have his conviction vacated. However, a judge denied it. A coalition of public defenders and advocates have been urging legislators to amend the typo in the law but have been told that doing so would require introducing a corrective bill.
However, the spokesman for Crystal D. Peoples-Stokes, the State Assembly’s Democratic majority leader and a sponsor of the 2021 legislation, said her office reviewed the issue and would make any necessary changes. He was arrested in 2019 at 22 with seven pounds of marijuana and $65,000 at his home in Glens Falls.
