The issue of marijuana legalization in New York has been among the most contentious between Gov. Cuomo and state lawmakers this year. (Photo: Matthew Staver/Bloomberg)

The leader of the New York State Senate said Wednesday that she would prefer low-level marijuana-related criminal records to be expunged, rather than sealed, as lawmakers continue negotiations on how to legalize the drug sometime in the next five weeks.

That position could set the stage for a legal disagreement between members of the Senate and Gov. Andrew Cuomo, whose administration has argued that lawmakers would need to amend the state constitution to allow expungement of those records over sealing.

Sealing someone's record shields it from public view, but still allows it to be seen by members of law enforcement with a court order. Expungement permanently destroys someone's criminal record, making it as if that person had never been accused of the crime.

Senate Majority Leader Andrea Stewart-Cousins, D-Westchester, took a beat when asked by the New York Law Journal if she preferred expungement over sealing at a press conference Wednesday. She then took a position.

“I think they should be expunged,” Stewart-Cousins said.

That may not be reflected in a new bill to legalize marijuana that's expected to be introduced in the coming weeks, according to Democrats who sponsor the legislation. Marijuana legalization has largely been pushed by State Sen. Liz Krueger, D-Manhattan, and Assembly Majority Leader Crystal Peoples-Stokes, D-Buffalo.

When asked about the contents of that bill this week, Peoples-Stokes said it will “mirror” legislation proposed earlier this year by Cuomo to legalize marijuana in New York. Cuomo's proposal would have only sealed criminal records for low-level marijuana-related convictions.

“What it essentially does is mirrors the governor's proposed cannabis legislation that was in his budget, because it was made up of not just the legalization of adult use but it also enhanced the regulations for medical marijuana and enhanced the regulations for hemp,” Peoples-Stokes said. “So, just mirroring his legislation.”

Peoples-Stokes declined to take questions from the New York Law Journal on Wednesday as to whether the new bill would opt for sealing versus expungement. An adviser to Peoples-Stokes said one of the two options is expected to be included in the bill.

Cuomo's office has said that lawmakers may not be able to pass legislation this year that would allow low-level marijuana convictions to be expunged, which is why they opted to include a sealing provision in his proposal instead.

Alphonso David, counsel to Cuomo, said during a hearing on the state budget earlier this year that lawmakers would likely have to amend the state constitution to allow expungement of those records. That would take years and require approval from voters.

“We've taken a position that sealing is actually something we can do statutorily,” David said. “There are still questions about whether or not you can advance an expungement proposal legislatively. Rather than debate that and expose this legislation to a legal challenge, we advanced a proposal based on sealing.”

The issue of marijuana legalization has been among the most contentious between Cuomo and lawmakers this year. The leaders of both legislative chambers, along with Cuomo, have all agreed to support legalization but haven't come to a consensus on what that will look like.

Cuomo's proposal from January, which Peoples-Stokes said will be reflected in the new bill, would essentially create a new industry in New York related to cannabis. It would establish an Office of Cannabis Management that would license marijuana producers, distributors and retailers. There's no timeline on when the drug would be on the market.

The proposal also would have used state revenue generated from the sale of marijuana to invest in communities that were disproportionately harmed by the state's laws on the drug. Stewart-Cousins said Wednesday that's been important for members of her conference.

“As we look at creating a new industry, we want to make sure we learn from others who have already done it and that there's always a conversation about communities disparately impacted by the previous prosecution of this very same product,” Stewart-Cousins said. “I think a lot of it has to do with how are we going to change the conversation, the economy, as well as the prosecution around marijuana.”

Peoples-Stokes confirmed this week that the new bill would include that provision, but would also divert funding to training for law enforcement to monitor road safety and public protection. The latter provision was also included in Cuomo's proposal.

Marijuana legalization was initially expected to be passed by the end of March as part of this year's state budget. That didn't happen. Lawmakers couldn't come to an agreement with Cuomo on the legislation before the budget deadline and decided to consider it after the spending plan was resolved.

Stewart-Cousins said Wednesday that discussions are ongoing between Cuomo and lawmakers on the issue, but that it was guaranteed to be resolved by the end of this year's legislative session.

“The conversations around marijuana and some of these things that have come up before are ongoing, and I don't know that we will have a resolution by the end of session but obviously it's an issue that people are paying attention to,” Stewart-Cousins said.

Lawmakers have the next five weeks to come to a deal on the issue before they leave Albany for the year.

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