June 22, 2022
Keston Mayers sat handcuffed in the back of a cop car watching as more than a dozen police officers milled about on the snow-covered road in front of his Long Island home.
He was in the middle of an anxiety attack.
Mayers had reached out to a friend that night – Jan. 26, 2016 – to share his feelings of depression and dark thoughts. That friend reached out to the police.
What that friend did not know, “as a 50-year-old white woman who lives in Colorado,” Mayers told NY Cannabis Insider, “is that you do not call the police when Black people are experiencing anything.”
Responding officers would eventually talk Mayers into letting them search his house “to make sure everything’s OK,” according to body camera footage. Inside, they’d discover two bags of weed in his bedroom, a gun registered out of state and hundreds of marijuana plants in the basement, according to court filings.
They would threaten to arrest his mom, who was spending the night, and seize more than $8,500 of her money. Mayers would be charged with felony possession of marijuana.
The events that night would haunt the 30-year-old for the next six years. They would tear apart his relationship with his mother and ensure his job prospects moving forward were limited.
And they would lead to a court case that could decide the fate of anyone arrested in New York State on a cannabis charge before the Marijuana Regulation and Taxation Act passed last year.
Severe and ongoing consequences
As the state readies itself for a recreational cannabis market, lingering criminal justice questions haunt the outskirts of the MRTA – some with lasting personal effects. Mayers is caught up in one of only two legal battles currently being fought in the state regarding “vacatur.”
In short, the MRTA made the possession, use, and sale of marijuana legal. It also led to the state expunging or suppressing from search almost 400,000 convictions for cannabis offenses to date — but only for low-level marijuana convictions.
There is an unknown number of New Yorkers who received misdemeanor and felony convictions, and their records are not automatically wiped clean.
Under the MRTA, these people can ask the court to vacate, or cancel, their conviction – as long as they are experiencing “severe or ongoing consequences related to either their conviction or the sentence,” according to the law.
“I cannot imagine an instance where a prior marijuana conviction does not cause severe or ongoing consequences,” said Wei Hu, an attorney and founder of MRTA Law who is representing Mayers and another client, Michael Graubard, as their applications to vacate are being opposed by the Nassau and Dutchess County DA offices, respectively.
“It impacts the family, it impacts personal relationships, it impacts your professional ones, it disenfranchises people from voting, it keeps people out of public housing, it disables them from sustainable employment, and it’s one of the most pernicious laws that still exists when you now have legal and regulated sales,” said Hu.
“It’s really distasteful.”
The Nassau County DA is arguing that Mayers’ previous crime is still considered a crime in the wake of cannabis legalization, due to the amount seized.
Granting his request, the DA’s office wrote in its opposition, would amount to “an arbitrary amnesty and windfall” for people like Mayers, while those who commit similar crimes in the future may still be prosecuted.
The Nassau DA is not contesting that Mayers is suffering from severe or ongoing consequences.
The Dutchess County DA also doesn’t contest Graubard’s claims of severe or ongoing consequences, but argues the same point in its case – that Graubard’s offense (transporting over 100 pounds of cannabis) is still illegal post-MRTA.
A person who commits the identical crime today “would be prosecuted and incarcerated,” according to Dutchess DA Wiliam Grady’s argument to the court.
“The Legislature cannot have intended such an unfair result,” Grady said.
The Dutchess County DA’s office declined to comment for this story, citing the pending litigation. Nassau confirmed a few facts of their case but wouldn’t comment further for the same reason.
“I saw a tweet the other day,” Mayers said. “It was a picture with three white kids holding up bags and bags of marijuana. And they’re like, ‘In 2015, me and my friends decided to start growing pot. Now today, we are a publicly traded company estimated at a $100-million value.’”
He laughed.
“You started growing weed when I grew weed,” he said, “and now you have a $100-million company and I’m in court trying to advocate for myself to get this felony off my record.”
“It’s torture,” he said.
The interests of justice
On March 25, 2014, during a traffic stop in the Town of Amenia, deputies from the Dutchess County Sheriff’s Office discovered that Defendant possessed approximately 114 pounds of marihuana and $8,676.00 … Defendant was sentenced to 2 years’ incarceration to be followed by 2 years’ post-release supervision.
For 20 years, Michael Graubard connected cannabis dealers in New Mexico with buyers in the Berkshires. He’d often make the 2,000-mile drive himself, trunk laden.
“You kind of get used to it, but you’re always nervous,” he told NY Cannabis Insider.
Defendant pled guilty … to First-Degree Criminal Possession of Marihuana ... a Class C felony.
He was working regular jobs in his late 20′s when he capitalized on connections to “mid-level people that had really great deals” in the Santa Fe area, then made a nice little business outbidding other wholesalers in Massachusetts, he said. He was also studying at Hunter College to get into social work.
“While the MRTA ... was enacted to ameliorate negative consequences of marihuana convictions, the Legislature also determined that certain conduct involving marihuana still constitutes criminal behavior.” — Dutchess County DA William Grady
For Mayers and Graubard, the court decisions will not only affect the rest of their lives, but may also offer an opportunity for justice.
“I saw a tweet the other day,” Mayers said. “It was a picture with three white kids holding up bags and bags of marijuana. And they’re like, ‘In 2015, me and my friends decided to start growing pot. Now today, we are a publicly traded company estimated at a $100-million value.’”
He laughed.
“You started growing weed when I grew weed,” he said, “and now you have a $100-million company and I’m in court trying to advocate for myself to get this felony off my record.”
“It’s torture,” he said.
The interests of justice
On March 25, 2014, during a traffic stop in the Town of Amenia, deputies from the Dutchess County Sheriff’s Office discovered that Defendant possessed approximately 114 pounds of marihuana and $8,676.00 … Defendant was sentenced to 2 years’ incarceration to be followed by 2 years’ post-release supervision.
For 20 years, Michael Graubard connected cannabis dealers in New Mexico with buyers in the Berkshires. He’d often make the 2,000-mile drive himself, trunk laden.
“You kind of get used to it, but you’re always nervous,” he told NY Cannabis Insider.
Defendant pled guilty … to First-Degree Criminal Possession of Marihuana ... a Class C felony.
He was working regular jobs in his late 20′s when he capitalized on connections to “mid-level people that had really great deals” in the Santa Fe area, then made a nice little business outbidding other wholesalers in Massachusetts, he said. He was also studying at Hunter College to get into social work.
“It just seemed like it was a harmless drug compared to alcohol,” Graubard said, “and I didn’t really feel guilty about it.”
“Massachusetts man sentenced for major pot bust,” Roberto Cruz, Poughkeepsie Journal, Sept. 8, 2014.
Graubard shortened his resulting sentence by participating in the state’s shock incarceration program, or boot camp prison, and upon release, took his dog for a long hike in the woods in Stockbridge, Mass.
In the years since, Graubard said, he’s wanted to become a teacher, work with kids, but his felony makes that next to impossible in both New York and Massachusetts. So he took a job as a prep cook, and moved on to serving and bartending at a Berkshire resort.
Post-legalization, Graubard reached out to Wei Hu, who was establishing a cannabis-focused law practice. The two had met more than a decade earlier through mutual friends in New York City, and today they are pursuing a conditional retail dispensary license together.
Hu helped Graubard file his application for vacatur in July.
The Dutchess DA opposed the application, stating that changes to the law post-MRTA said Graubard’s conviction could be knocked down a level — but that he didn’t qualify for full vacatur.
“It appears Respondent Dutchess County District Attorney believes ... that despite severe and ongoing consequences, Movant should continue to bear the scarlet letter of a felony marihuana possession conviction even when New York State is establishing a whole cannabis industry.” — Wei Hu
Hu challenged the DA’s argument in the Dutchess County Supreme Court. In October, the court ruled that Graubard’s conviction by plea was “not knowing, voluntary and intelligent,” determined his sentence constituted “cruel and unusual punishment” under the state constitution, and agreed that he was experiencing “severe and ongoing consequences” as a result of his conviction.
But it would not vacate his record. (The court also found that changes to New York’s criminal law under the MRTA contained “a drafting error” that would “create unjust and illogical results if implemented.”)
Hu appealed the decision in December: Not vacating would be “contrary to the MRTA’s goals of restorative justice,” he wrote.
And there’s the question: What did the New York State legislature intend when writing this part of the MRTA?
Dave Holland, a partner with Prince Lobel and president of the New York City Cannabis Industry Association, believes lawmakers intended for courts to consider vacature after reviewing a person’s history.
“Most people would agree with me, that somehow they meant to give the court something,” Holland said – some power to go beyond just knocking a felony down a class.
“My gut is telling me that language wouldn’t be there – that says the courts still have a say – if they were not intended to have a say,” he said.
As a 54-year-old white man from Massachusetts, Graubard is not the face of the War on Drugs.
But his case is the first in New York to question what the MRTA intended – and how far it was meant to go – in mitigating the lasting effects of that war.
The land of opportunity
Keston Mayers grew up in Long Island in the early ‘90s as the son of immigrants from Trinidad and Tobago. Money was always tight – his mother worked at Taco Bell and his father at A&P, he said.
“Even though we were poor, even though we were struggling, that mindset that ‘this is the land of opportunity’ normally drives immigrants, which drove my dad and my mother to work as hard as they did,” Mayers said.
He never liked cannabis as a teenager, he said – horrible experiences. But while pursuing a career in film and TV in California during his mid-20s, Mayers met a dispensary owner who made good money (medical cannabis was legal in California at the time).
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