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PURSUANT TO THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) (1) DEFENDANT’S MARIHUANA CONVICTION WAS PROPERLY VACATED (2) ANOTHER CONVICTION WAS PROPERLY SUBSTITUTED FOR THE VACATED CONVICTION (3) BUT COUNTY COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER WHETHER SUBSTITUTING ANOTHER CONVICTION SERVED THE INTEREST OF JUSTICE; MATTER REMITTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing County Court, determined: (1) defendant’s marijuana conviction was properly vacated under the Marihuana Regulation and Taxation Act (MRTA); (2) once vacated, the court had the authority to substitute a conviction for the vacated conviction (which it did); but (3) the court committed reversible error by failing to consider whether substituting a conviction served the interest of justice. The matter was remitted for the “interest of justice” ruling:

… [T]he main questions presented are whether the County Court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction, and whether the court failed to consider if it was not in the interests of justice to do so. We hold that the court, having vacated the defendant’s conviction under Penal Law former article 221, had the authority pursuant to CPL 440.46-a(2)(b)(ii) to substitute a conviction under Penal Law article 222 for his vacated conviction. We further hold that the court committed reversible error by failing to consider, as required by the statute, whether it was not in the interests of justice to substitute a conviction for an appropriate lesser offense. People v Graubard, 2023 NY Slip Op 01308, Second Dept 3-15-23

Practice Point: Under the Marihuana Regulation and Taxation Act (MRTA) persons convicted of marihuana offenses which have been eliminated or reduced may move to vacate the conviction. Once vacated, the statute allows the substitution of another conviction but the court must consider whether the substitution serves the interest of justice.

 

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