DA opposes effort to vacate plea under legalization law
Michael Graubard has just one arrest and one conviction in his life, according to his attorney, Wei Hu.
But Graubard’s guilty plea in 2014 to possessing 114 pounds of marijuana is now one of the first tests of a state law enacted in March 2021 that not only legalized the possession of up to 3 ounces but also gave people with pot convictions a chance to clear their records.
Graubard and Hu are appealing an October 2021 decision by Judge Jessica Segal of Dutchess County Court to deny his request to have his conviction for first-degree criminal possession of marijuana, a Class C felony, fully vacated under provisions of the Marijuana Regulation and Taxation Act (MRTA).
He pleaded guilty to the charge in June 2014, three months after Dutchess County sheriff’s deputies found the marijuana and nearly $9,000 in cash after stopping a car he was driving in the Town of Amenia. He served nearly two years in prison and underwent two years post-release supervision.
Now, Graubard wants to take advantage of MRTA, which eliminated some marijuana crimes and mandated that the court system automatically expunge the records of people serving sentences for those offenses. The law has led to 107,633 convictions being expunged, according to the state Division of Criminal Justice Services.
The state also retained some marijuana-possession offenses, but reduced their severity and gave people who would still be guilty of the lesser crime the right to petition the courts for a vacated conviction.
Judges should presume, according to MRTA, that any sentence under the old criminal laws constitutes “cruel and unusual punishment” under the New York Constitution if the person convicted experiences “severe or ongoing consequences.”
Instead of vacating Graubard’s conviction, Segal reduced it to the current version of first-degree criminal possession of marijuana, which was downgraded under MRTA from a Class C to a Class D felony and carries less prison time.
She also noted a “clerical error” in a section of the law that seems to give judges discretion to substitute the current lesser crime for the old one, but mistakenly references a part of the law pertaining to people whose previous offenses are no longer illegal.
Implementing the statute “would create unjust and illogical results,” said Segal. (A bill that would correct the error, S7266, is before the state Senate’s Codes Committee.)
Hu, while arguing the appeal of Segal’s decision on Jan. 30, before a panel of judges for the Appellate Division, Second Department, said Graubard has been unable to pursue a teaching career because of the conviction, and that Segal’s decision will continue to restrict his opportunities.
“The Legislature never intended for you to substitute one felony conviction for another felony conviction … that imposes the exact same severe and ongoing consequences on my client’s life,” said Hu.
The Dutchess District Attorney’s Office does not deny that Graubard is harmed by the conviction, said Anna Diehn, senior assistant district attorney, while outlining the county’s opposition.
But the DA’s office, in a court filing, maintains that because the Legislature retained in the new law a charge of first-degree criminal possession of marijuana, it intended that “individuals who commit certain offenses should be held accountable.”
“A person in the defendant’s shoes today … if they were arrested with 114 pounds of marijuana, is getting arrested and facing incarceration,” said Diehn.
