The Bronx district attorney's office recently came under fire for not dismissing open low-level marijuana cases tied to behaviors that are no longer illegal, but a tentative deal is in the works that could see the prosecutor's office start dropping cases, sources told Law360 on Thursday.

Passed two months ago, the Marijuana Regulation and Taxation Act legalized personal cannabis use, downgraded penalties for illegal use, and put in place an automatic process for the expungement of old and present convictions for marijuana offenses that are not crimes under the new law. The law also forbids police to use the odor of marijuana as a pretext for a search.

Public defenders say some district attorneys in New York City have been sluggish in disposing of open cases for marijuana possession that are now fully expungeable. In the Bronx, specifically, the district attorney came under pressure by defense attorneys last month for keeping in place numerous pending cases, desk appearance tickets and bench warrants.

Eli Northrup, an attorney with the Bronx Defenders, however, told Law360 on Thursday morning that the DA's office has agreed in conversations with public defenders to identify and dismiss open marijuana cases involving expungeable offenses under the MRTA. In a phone call last week with Ann Mathews, the director of the Bronx Defenders' criminal practice, Chief Assistant District Attorney Derek R. Lynton also said the office would move to vacate open bench warrants. It would not, however, dismiss cases where the smell of cannabis played a role in searches when these uncovered other crimes.

Northrup said the office did not want to go on the record about its intentions.

"They haven't said anything publicly," he said.

A spokesperson for the Bronx DA's office told Law360 in an email Thursday that the office "has already worked with the court to coordinate a mass dismissal of cases involving solely [Penal Law] 221 marijuana charges and a separate dismissal of any open warrants on these marijuana charges."

The spokesperson did note that the office intends to keep marijuana charges that are attached to other charges alive during the evidence-gathering stage, but that those charges will be dismissed after a hearing is done "to meet the office's evidentiary burden."

The office hasn't yet publicly acknowledged that it intends to dismiss pending marijuana charges and move to vacate the warrants. The spokesperson did not provide a timeline for the dismissals and declined to confirm Northrup's account.

Public defenders say these marijuana cases needlessly impend over people's lives with no real benefit, costing the taxpayer money.

"Having a bench warrant hanging over your head can really put somebody in jeopardy. It's also a total waste of resources," Northrup said.

The Bronx Defenders estimated there are hundreds of bench warrants for marijuana cases for people who pled guilty to possession in the past and never paid the corresponding fine, or didn't come back to court. Northrup said prosecutors have been slow and inconsistent in dealing with the cases, providing no rationale for their decisions.

"The Bronx DA is just dragging their feet," he said.

Since bail reform kicked in in January 2020 before the MRTA was enacted, police had begun issuing desk appearance tickets to people caught with marijuana in public. Many of those people are still asked to return to court, even though they were charged for actions that are now legal under the law, or that have been reduced to simple violations.

"People come in almost every day on marijuana charges and the DA's office doesn't take any sort of uniform stance on those," Northrup said. "Sometimes they ask for pleas, sometimes they dismiss them. It really depends on whatever supervisor is sitting in the arraignment part."

In a letter last month, the Bronx Defenders urged District Attorney Darcel D. Clark to clear its low-level marijuana dockets and seek to vacate existing warrants, saying the MRTA made it pointless to continue to prosecute those cases. Law360 Pulse obtained a copy of the letter, which was first reported on by Gothamist in a May 8 story. 

"Even if [the Bronx DA's office] were to proceed on these matters against an accused, if a conviction were obtained, it would be immediately and automatically expunged. Under these circumstances, there is no reasonable basis upon which to continue these prosecutions. As such, these cases should be immediately dismissed," the letter said.

In the letter, the public defender organization said there were hundreds of pending cases in which the most serious charges were criminal sale in the fourth degree (selling up to 25 grams of marijuana) and criminal possession in the fifth degree (possessing between 25 grams and two ounces of marijuana or smoking in public view).

The Bronx Defenders also asked the district attorney to drop criminal cases where the smell of marijuana was the cause for a search that resulted in more serious charges.

In the weeks after the letter was sent, Bronx prosecutors continued to ask defendants to plead guilty at hearings, Northrup said. In some of those cases, judges dismissed the charges outright.

Each prosecutorial office handles marijuana cases differently.

Oren Yaniv, a spokesman for the Brooklyn district attorney's office, told Law360 that the office has only a few open cases involving only marijuana possession. In cases involving other crimes, the marijuana charges are dismissed at a defendant's next court hearing.

In the Supreme Court, prosecutors are not presenting marijuana charges to grand juries, Yaniv said. For defendants already under grand jury indictment, the prosecutors might wait to drop marijuana charges until before trial if the marijuana allegations are crucial to support evidence for more serious crimes, like possession of a gun or heavier drugs.

The office is not asking defendants to plead guilty to violations that are now expungeable under the law.

The Brooklyn DA's office has followed a path of decriminalization of marijuana since 2014, when then-District Attorney Kenneth P. Thompson limited low-level marijuana prosecution, saying it targeted Blacks and Latinos at disproportionate rates.

That policy expanded under the current district attorney, Eric Gonzalez, who in 2018 added more categories of marijuana offenses the office would decline to prosecute. In 2019, the office announced it would no longer prosecute low-level marijuana possession cases at all, and vacated more than 1,400 related warrants.

"We just have not been prosecuting marijuana for the last four to five years in this county," Yaniv said.

The district attorney's offices of Queens and Staten Island did not return several requests for comment on their handling of low-level marijuana cases.

Emily Tuttle, a spokeswoman for the Manhattan district attorney's office, told Law360 the office will dismiss open marijuana cases at court hearings. Moving forward, she said, the office will only prosecute misdemeanors and felonies under the newly created Penal Law 222, which has replaced Penal Law 221, the marijuana statute that existed before the MRTA was passed.

The office will continue to prosecute felonies under the old statute that are still crimes under the new law. Tuttle said there are currently 15 such cases, the vast majority of which involve more serious crimes such as murder or gun possession. Manhattan prosecutors will decline to prosecute defendants who have been issued summonses by the police for a violation under the new law, she said.

"We are dismissing all pending misdemeanor charges and certain unindicted felony charges under Penal Law 221 on a rolling basis on the individual's scheduled court date, whether or not the marijuana charge is the top count or the underlying charge," Tuttle said in an email.

She added, "We are working with [the Office of Court Administration] to compile a complete list of relevant bench warrant cases and will schedule a court appearance to vacate those warrants and dismiss the charges en masse once that is complete, which we hope will be in the near future."

The Nassau County district attorney, Madeline Singas — now a nominee for the New York State Court of Appeals — had also stopped prosecuting low-level marijuana cases before the MRTA went into effect. In April, the office announced it had vacated 1,168 warrants, of which nearly 900 were for marijuana possession.

"NCDA is now in the process of working with the courts to have each of those cases dismissed. The first 50 of those cases were dismissed last week, and this will continue until each of the cases identified is dismissed," Brian Lee, a deputy executive assistant district attorney, said in an email to Law360.

Lee said the office is also reviewing desk appearance tickets for marijuana possession issued beginning in January 2020, and which have been backlogged due to limited court activity during the pandemic.

"To date, 139 additional marijuana cases have been dismissed and more have been submitted to the courts for dismissal," Lee said. "That project continues and more cases are expected to be dismissed by the end of June."

Update: This story has been updated to include additional information on how the Bronx District Attorney's Office plans to handle marijuana charges that are attached to other charges.

--Editing by Bruce Goldman.