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

A new bill designed to legalize marijuana for adult, recreational use in New York will include a provision allowing those previously convicted on low-level drug charges to have their criminal records expunged, rather than sealed.

That legislation could draw opposition from Gov. Andrew Cuomo, whose office has previously argued that allowing expungement, over sealing, would require a multiyear process to amend the state constitution.

Assembly Majority Leader Crystal Peoples-Stokes, D-Buffalo, told reporters at the state Capitol on Tuesday that she's planning to introduce a bill later this week that would legalize marijuana and allow expungement of low-level marijuana-related criminal records.

“Our original legislation says sealing, but if expungement is possible I'd prefer expungement. It's drafted in the language as expungement,” said Peoples-Stokes, who has led the push to legalize marijuana this year with other Democrats.

She said that, according to attorneys she's spoken to, expungement would be an easier path for those previously convicted on low-level drug charges. Rather than going through the process of having a criminal record sealed, which is often a lengthy ordeal, expungement may be faster.

“According to counsels … expungement is a lot speedier path and gets you right there, as opposed to sealing, there's a process that has to happen,” Peoples-Stokes said.

The same position is held by Senate Majority Leader Andrea Stewart-Cousins, D-Westchester, who said during a press conference last week that she would prefer legislation to expunge low-level marijuana-related convictions over a provision to seal those records. After a short pause, Stewart-Cousins chose the former option.

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

But the Cuomo administration has previously argued that lawmakers would not legally be able to allow expungement of records this year. It has said that change would require amending the state constitution, a multiyear process that requires two votes by the Legislature and approval from voters.

That's why legislation proposed by Cuomo earlier this year to legalize marijuana included a provision to seal low-level criminal records, rather than allow expungement. Alphonso David, counsel to the governor, told lawmakers during a hearing on the state budget in February that legislation to allow expungement could be met with a legal challenge over its constitutionality.

“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.”

Peoples-Stokes said, as of late, the governor's office hasn't actually been engaged in discussions to legalize marijuana. That's a change from earlier this year when Cuomo called for the drug's legalization and advocated for it to be done as part of the state budget in March. The bill she expects to introduce later this week is based, in part, on those preliminary negotiations, Peoples-Stokes said.

“At this point, I would say that he is not engaged in this process, but I will say what is in the language was negotiated in the budget process,” Peoples-Stokes said. ”They have already been involved prior to this week. So they're not involved this week. They're not actively involved.”

A spokesman for Cuomo said they're waiting on the new proposal from lawmakers and will review it when it's introduced.

“They've promised us revised legislation for quite some time,” the spokesman said. We'll review it when its released and I hope they have the votes.”

Peoples-Stokes said last week that the new bill will “mirror” the governor's original proposal, with some tweaks. The legislation will, for example, provide funding for law enforcement agencies to use toward enforcement recognition training dealing with intoxication and road safety. Cuomo's proposal included the same idea.

The call for more training, and the funding to go with it, has been made previously this year by members of law enforcement and other lawmakers, such as state Sen. Todd Kaminsky, D-Nassau. Kaminsky held a roundtable with stakeholders to discuss the issue in January.

The conclusion to that discussion was that more training was needed for drug recognition experts to enforce road safety laws. Peoples-Stokes said she wasn't sure those resources were needed but that she was willing to support them if it wins over members of law enforcement.

“Why do they think they need that? We literally have a $2 billion underground industry in the state of New York. How are they doing that now?” Peoples-Stokes said. “But if they need something else to make them more comfortable, then I think we should provide that to them.”

As is common at the state Capitol, the issue could very well end up in an omnibus end-of-year bill affectionately referred to as the “big ugly” in Albany speak. Lawmakers typically approve controversial issues together at the end of the year, rather than passing them as stand-alone bills.

Lawmakers have less than a month to come to a deal on legalizing marijuana for adult, recreational use before they're scheduled to leave Albany for the year.

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