Despite two years spent trying to clear an old marijuana felony from his record, Michael Graubard still can't become a teacher.

New York's cannabis legalization law was supposed to give Graubard and others a chance to vacate past marijuana-related felony convictions if those convictions keep them from getting jobs, housing or educational opportunities.

Graubard, 55, is a "poster child" for that relief, according to his attorney. He was in school working toward his teaching credential when he pled guilty to first-degree criminal marijuana possession in 2014. The class C felony has kept him from getting a teaching license, and he now works as a server and bartender.

"If I want to become a teacher, working with kids or anything like that with a felony is difficult," Graubard told Law360. "I'd like to go back to school and try and move on with my life and better myself."

But that's proving difficult for some. Confusion around the new law and a possible typo in its text have left judges and attorneys in some New York counties at odds over whether courts have to clear these past felonies or not.

In Graubard's case, rather than clearing the conviction entirely, a Dutchess County judge opted to replace his marijuana conviction with another: first-degree criminal possession of cannabis, which remains a class D felony under the new law.

"All it does is change the name. It removes no barriers to my client for future employment. He still can't get a teacher's license," said Wei Hu, the attorney representing Graubard. "Felony C to felony D does nothing."

Hitting Reset on Cannabis

New York's Marihuana Regulation & Taxation Act, which legalized recreational cannabis in 2021, offered automatic expungement to those who had been convicted of certain low-level marijuana-related offenses under the state's old marijuana law, known as Article 221.

The statute allowed those convicted of more serious marijuana-related felonies to petition for vacatur of that conviction if the conduct they were convicted for is no longer a crime or is a lesser offense under the new law, known as Article 222.

The new law says that courts should "presume" that a defendant satisfies the criteria for vacating their conviction if that conviction "has severe or ongoing consequences." At the same time, however, the law also allows courts to swap out old convictions for appropriate lesser offenses "unless it is not in the interests of justice to do so."

But judges and lawyers disagree about what exactly those provisions mean, with some defense attorneys saying the law requires courts to vacate old felonies if they still have negative impacts and some prosecutors and judges saying the law gives courts discretion to deny defendants' petitions or substitute lesser felonies if it's in the interests of justice to do so.

So when Douglas Dermott requested that his 2001 convictions for criminal sale of marijuana, a felony, be vacated and replaced with convictions for unlawful sale of cannabis, now a violation punishable by a fine, a Saratoga County judge denied the request and left his original convictions undisturbed.

Dermott is an accomplished school psychologist who can't advance in his career and has seen job offers rescinded because of those convictions, according to his attorney Jeffrey Hoffman.

"The state has branded him with the scarlet letter of conviction, which is preventing him from proceeding in his life, getting employment opportunities," Hoffman said. "These are severe and ongoing consequences."

Those "severe or ongoing consequences" mean his client qualifies to have his convictions vacated, according to Hoffman.

But the judge pointed out that, even though he pled guilty to selling marijuana, Dermott had originally been indicted on charges related to other drugs, including LSD.

"Turning a blind eye to the full panoply of offenses for which the defendant originally stood charged would not advance the interests of justice," the judge ruled.

The Saratoga County district attorney, who opposed Dermott's petition, did not respond to an interview request.

But Hoffman says that the prosecutor and the judge are violating the intent behind the law.

"In what interests of justice is it for someone to have a 20-year-old conviction that prevents them from getting job opportunities in 2023?" Hoffman asked. "I think that's insanity."

A Warren County judge similarly denied Frederick Volkman's request to replace his conviction for second-degree criminal possession of marijuana, a felony, with a conviction for third-degree criminal possession of cannabis, a misdemeanor. In shooting down the bid, the judge explained that, while Volkman pled guilty to the marijuana charge, the police searching his home had found codeine as well.

"As the court indicates in the written decision, 'Substituting the defendant's Article 221 conviction for a lesser Article 222 conviction would wholly ignore the sheer volume of charges, and potential charges, which were looming over the defendant prior to his guilty plea,'" Warren County District Attorney Jason Carusone, who opposed Volkman's petition, told Law360 in a statement.

And a Suffolk County court originally denied John Ghedini's request to completely vacate his conviction for criminal possession of marijuana after prosecutors opposed it. Instead, the judge swapped it for a criminal possession of cannabis conviction, which left Ghedini unable to become a U.S. citizen and subject to deportation, according to court filings.

After Ghedini moved for reargument of that decision, a judge reversed and ultimately did opt to simply vacate his original felony conviction "in the interests of justice."

The Suffolk County District Attorney's Office, which has changed hands since, told Law360 that it can't comment on a case that was argued under a previous administration.

Defense attorneys insist these judges and prosecutors are undermining the spirit of MRTA, which the legislature and voters intended to make clearing past marijuana felonies easier.

"The people of the state of New York, through their elected representatives in Albany, have hit the reset button on cannabis," Hoffman said. "So we would like to see the judicial mechanism in this state act appropriately."

'An Unreasonable and Absurd Result'

Prosecutors, judges and defense attorneys do agree that the new law is unclear when it comes to expunging marijuana felony convictions.

The judges in Dermott's and Volkman's cases, for instance, each said that on the basis of just their convictions, the defendants qualified for vacatur. But MRTA also allows the court to rely on "other information," such as original indictments or police reports, in deciding not to vacate a conviction or to substitute a lesser offense.

The judge hearing Graubard's case, meanwhile, ruled that, under the law, he couldn't vacate Graubard's conviction entirely and was required to impose the maximum corollary charges, according to court filings.

That judge "got the law wrong eight ways from Sunday, saying vacatur and expungement was not available relief," said Hu.

The first section of MRTA provides for the automatic expungement of certain low-level marijuana-related convictions, including first- and second-degree unlawful possession of marijuana, third- and fourth-degree criminal possession of marijuana, and fifth-degree criminal sale of marijuana, among others, according to the New York court system.

The second section of the law — which is labeled 2(a) and is the one at the center of these cases — allows those with more serious marijuana-related convictions to petition a court to vacate those convictions if, as in subparagraph (a)(i), the crime a defendant was convicted of would no longer be a crime or, as in subparagraph (a)(ii), the crime a defendant was convicted of would have been "a lesser or potentially less onerous offense" under the new law.

The following part of section 2 — subparagraph (b)(i) — requires courts to grant petitions to vacate qualifying convictions unless an opposing party, such as a prosecutor, can prove the defendant doesn't satisfy the criteria for vacatur, which include that the conviction "has severe or ongoing consequences."

Where attorneys and judges seem to be running into trouble is in the next part — subparagraph (b)(ii) of section 2 — which allows a court to substitute a qualifying appropriate lesser conviction under section 2(a)(i) "unless it is not in the interests of justice to do so."

Subparagraph 2(a)(i), however, refers to individuals convicted of crimes that are no longer crimes since the legalization bill went into effect, so there is no appropriate lesser offense to substitute. Instead, it's subparagraph 2(a)(ii) that refers to individuals convicted of crimes that would now be lesser offenses. Graubard, Dermott and Volkman fall into this category.

Logic seems to dictate that courts should only be able to apply substitution for defendants like them who meet the criteria in subparagraph 2(a)(ii) and whose conduct would still be a less serious crime under MRTA.

But that's not what the law says. It says substitution is only available for those who meet the criteria in subparagraph 2(a)(i). It doesn't actually say anything about what courts can or can't do with defendants like Graubard, Dermott and Volkman who meet the criteria in subparagraph (a)(ii).

That "mere scrivener's error" in the law is a problem, according to a New York appellate court's March ruling after Graubard appealed the lower court's denial of vacatur.

The panel admitted that the statute "as written" doesn't allow substitution in Graubard's case.

But applying the statute as written "leads to an unreasonable and absurd result," the appellate court ruled.

Only if the law is read as if it said that a court can substitute a conviction for an appropriate lesser offense for defendants like Graubard does "the new statute make sense and implement the legislature's stated intent," the court said.

But prosecutors, judges and defense attorneys seem to disagree about what exactly the legislature's intent was.

New York's Office of Cannabis Management, currently led by the law's main drafter, did not respond to an interview request. Neither did the law's main sponsors in the state Senate and Assembly.

Hu acknowledges there's an error in the legislation, but calls the panel's reliance on that error "a red herring."

Hu claims that, once there's a judicial finding of severe or ongoing consequences as described in section b(i) of MRTA, a defendant's conviction must be erased.

"We stop there. You do not go into the b(ii) analysis," Hu said, referring to section b.ii of the law, which states a court "may substitute, unless it is not in the interests of justice to do so, a conviction for an appropriate lesser offense."

"You go to b(ii) analysis, or substitution, when there's no finding of severe or ongoing consequences. Going straight to b(ii) after a finding of severe or ongoing consequences under b.i renders that term of art mere surplusage," Hu insisted.

Prosecutors disagree with that reading of the law, however.

The conduct for which Graubard was convicted — transporting 114 pounds of marijuana — is still a class D felony under the new law, so the judge "fairly applied the new statute," Dutchess County Senior Assistant District Attorney Anna K. Diehn told Law360.

But the new law is "somewhat difficult to navigate," she acknowledged.

What's really at issue is whether judges have to clear old marijuana felony convictions once a defendant has shown that conviction has "severe or ongoing consequences," according to Hu.

Reading the law as the appeals court does, he insisted, "deprives over 9,000 people in Mr. Graubard's situation from getting a shot at automatic vacatur upon the finding of severe or ongoing consequences."

Chipping Away at 'Unfair Laws'

Hu hopes he will have another chance to make that argument, and has asked for leave to appeal the appellate ruling in Graubard's case.

"This is a matter of first impression. This is a brand new law and hasn't hit appellate judicial review until my case," Hu said. "And they flubbed it."

Hoffman has also requested permission to appeal the ruling in Dermott's case, he said.

According to Hoffman, the legislature's real mistake was not the "scrivener's error" the appellate panel pointed to, but was instead in making expungement dependent on the "interests of justice," which gives judges and prosecutors too much discretion.

"I think the legislature screwed up by even allowing this interests-of-justice argument," Hoffman said. "It should have been all cannabis crimes go — period, full stop. These are things that never should have been crimes."

That's what's really at the heart of these cases, say defense attorneys.

Now that New York has legalized recreational cannabis, it doesn't make sense to keep people from moving on with their lives because of old marijuana felonies, they say.

"They're giving out licenses, people are billionaires now," Hu said. "But it's still keeping my client from actually giving back to the community."

Graubard, meanwhile, plans to keep trying to get the marijuana felony cleared from his record and become a teacher, he said. Even if he doesn't succeed, eventually someone will chip away at what Graubard calls "unfair laws."

"Society's idea of what is illegal has changed," Graubard said, "and I think the law should change with it."

--Editing by Emily Kokoll.

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Clarification: This story has been updated to clarify Dermott's professional title.