Is New York’s weed law flawed? Brooklyn DA backs off cannabis possession charges

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By Dan Sears

Last year, on April 20, police pulled over Tommy Yu for failure to signal while he was driving in Sunset Park, Brooklyn. An officer noticed Yu had a forged Department of Transportation parking plaque and searched his car, finding what he said were hundreds of ecstasy pills and 18 large bags of cannabis weighing more than 20 pounds, according to testimony.

In July, Yu had another run-in with police. Officers again searched his car and allegedly found another 14 bags of marijuana weighing more than 10 pounds, in addition to ecstasy and ketamine. New York’s Marijuana Regulation and Taxation Act legalized possession of less than three ounces of weed in 2021. Yu was accused of having much more than that in both incidents, resulting in multiple felony charges of criminal possession of cannabis and possession of a controlled substance.

But in October, Brooklyn Supreme Court Judge H. Jacob Moses threw out all nine of the cannabis-related charges against Yu, citing a wrinkle in the wording of the current cannabis law. Another Brooklyn judge made a similar call in July when reviewing the charges against someone arrested during a raid of an unlicensed cannabis shop. That case was dismissed and sealed.

Citing those rulings, Brooklyn District Attorney Eric Gonzalez now says his office will no longer prosecute New Yorkers for having too much weed. His decision comes amid increased efforts across the state to crack down on unlicensed weed stores without bringing criminal charges.

“Our office litigated this issue for the purpose of getting clarification on how the new law is interpreted by the courts,” Oren Yaniv, a spokesperson for Gonzalez, said in a statement last month. “Based on how the law is written, and in accordance with judicial findings, we can no longer prosecute weight-based marijuana possession cases.”

The rulings revolve around how police officers weigh the cannabis they seize. The judges wrote that authorities must calculate the weight of the parts of the marijuana that get people high. Prosecutors in Gonzalez’s office say that’s simply impossible.

But not every district attorney agrees with Gonzalez that the law, as written, is unenforceable. Convictions for illegal possession of marijuana are less common in the five boroughs than outside the city — but not unheard of.

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“I’m not going to be out here with a tiny violin [for district attorneys] any day soon,” said Melissa Moore, director of civil systems reform at the Drug Policy Alliance, a nonprofit advocacy organization.

In Yu’s case, the judge explained there was not enough evidence to uphold the cannabis charges because police had provided the “aggregate” weight of the cannabis seized but not the “pure” weight. The judge ruled the Marijuana Regulation and Taxation Act requires authorities to provide the “pure” weight of cannabis.

Decades of legal decisions have defined “pure” weight as the parts of cannabis that contain THC and get you high, not filler like seeds and stems, explained Erie County District Attorney John Flynn, who serves as president of the District Attorneys Association of the State of New York. The aggregate weight would be the entire bag of pot — seeds and all.

In Yu’s case, Assistant District Attorney Vanessa Contratto told the court that the NYPD’s lab is “not able to perform any analysis of cannabis” that would determine the pure weight. She added the DA’s office had consulted with a private lab that said it would be impossible to separate the parts of the plant that get people high and determine the pure weight.

Contratto argued the wording of the state’s marijuana law was likely a mistake and that the aggregate weight of the cannabis should be sufficient to get a conviction. But the judge disagreed, saying he found her “interpretation to be misplaced.”

According to DPA’s Moore, who was involved in conversations around the drafting of the Marijuana Regulation and Taxation Act, the wording was very much intentional. She said it was designed to prevent people from facing excessive drug charges, especially in cases where someone is caught with edibles, such as pot brownies, that may contain just a small amount of THC.

“It’s more involved to get the actual THC concentration, but it can certainly be done, and it’s worthwhile to have that step be required to make sure that New Yorkers aren’t facing charges that they shouldn’t face,” Moore said.

None of New York City’s other district attorneys responded to questions about whether they would continue to prosecute people for marijuana possession or sales.

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Unlicensed shops can still get shut down, slowly

This issue is coming to light as more legal cannabis dispensaries are slowly starting to open across the state and Gov. Kathy Hochul ramps up efforts to shut down thousands of unlicensed stores. Legal questions surrounding “pure weight” and “aggregate weight” are unlikely to derail those efforts.

New York’s enforcement strategy doesn’t rely on arrests, or depend on the amount of cannabis seized when a store is inspected.

Instead, the state Office of Cannabis Management is bringing civil actions against unlicensed weed sellers and seeking to prove they have continuously sold marijuana after being warned to stop. Under the legislation Hochul and the state Legislature passed last year, that can result in massive fines of up to $20,000 a day or an injunction that gets a store padlocked shut.

So far, the strategy has required a lot of time and resources and even had to be paused and rejiggered at one point because the state was struggling to get the desired penalties from administrative law judges. But state officials say it’s starting to yield results.

In her recent State of the State address, Hochul said she would introduce legislation this year to streamline the process and empower local governments, including NYC, to get more stores padlocked.

A longstanding loophole

The “pure weight” question is causing déjà vu for veteran prosecutors and defense lawyers.

The legal loophole first emerged in the 1977 Marijuana Reform Act and was then resolved through an amendment in 1979. State Sen. Liz Krueger has proposed a change to the current Marijuana Regulation and Taxation Act that would reup the aggregate weight standard once again.

But not all prosecutors see the “pure weight” issue as a major stumbling block, according to Flynn, the Erie County DA. One way around it would be charging someone with having more than 10 pounds of cannabis when they actually had an aggregate of, say, 50 pounds, he said. “Then, obviously, at least half of that’s going to be real marijuana,” Flynn added.

Since the current marijuana law was passed in March 2021, there have been at least 137 criminal convictions for the sale or possession of cannabis statewide, although only 13 of those were in NYC.

Attorney Lance Lazzaro, whose firm represents Yu, said criminal defense lawyers need to know the right arguments to get their clients’ charges dismissed. “The statute is the same throughout New York state, and it’s a pure weight statute,” he said.

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Flynn said that since legalization, there’s generally been far more appetite among district attorneys outside of NYC to prosecute people on cannabis charges than within the five boroughs.

“You have DAs and you have communities that are not happy with the marijuana legalization,” Flynn said. “They think that marijuana is a detriment to their communities and they’re going to take a strong stand on it.”

Lazzaro agreed that NYC’s district attorneys aren’t keen to bring these cases.

But that hasn’t stopped the NYPD and the city sheriff’s office from arresting a growing number of people on cannabis possession and sales charges. The sheriff’s office frequently announces the number of arrests made during raids of unlicensed shops, which law enforcement tout as evidence the city is making progress in the fight against the thriving underground cannabis market.

Between January and October last year, there were 370 arrests in NYC where the top charge was criminal possession or sale of cannabis, up from 181 arrests in 2022, according to data from the state Division of Criminal Justice Services. The number of arrests in the five boroughs last year outpaced that in the rest of the state for the first time since marijuana was legalized.

Neither the NYC sheriff’s office nor the NYPD responded to questions about whether the pure weight issue would influence decisions about when to arrest people on cannabis charges.

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