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MARIJUANA AND GRAVITY-KNIFE CONVICTIONS VACATED IN THE INTEREST OF JUSTICE BECAUSE THE “OFFENSES” HAVE BEEN DECRIMINALIZED (SECOND DEPT).

The Second Department vacated defendant’s marijuana and gravity-knife convictions because the “offenses” had been decriminalized:

The defendant’s conviction of criminal possession of marihuana in the third degree “‘became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt,'” pursuant to CPL 160.50(5) … . Consequently, the appeal from so much of the judgment as convicted the defendant of criminal possession of marihuana in the third degree must be dismissed as academic … . * * *

The defendant contends that the conviction of criminal possession of a weapon in the fourth degree predicated on the defendant’s possession of a gravity knife should be vacated because Penal Law § 265.01(1) has since been amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be modified by vacating that conviction. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 … , under the circumstances of this case, we vacate that conviction and the sentence imposed thereon, and dismiss that count of the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction … . People v Lester, 2022 NY Slip Op 04977, Second Dept 8-17-22

Practice Point: Here the marijuana and gravity-knife convictions were vacated in the interest of justice because the offenses had been decriminalized. The gravity-knife conviction was vacated even though the offense was not decriminalized at the time of its commission.

 

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