The State Claims Hemp Is Legal. The Brooklyn D.A. Disagrees
A bungled NYPD drug bust that mistook more than 100 pounds of legal hemp for marijuana was dismissed by the Brooklyn District Attorney on Tuesday. But one day after Governor Andrew Cuomo signed legislation meant to establish a “well-defined regulatory framework” for hemp and hemp extract, New York‘s prosecutors and police still aren’t clear on whether the ubiquitous, CBD-producing crop is legal.
The uncertainty was on display in a Brooklyn courtroom on Tuesday morning, as Ronan Levy was cleared of felony drug charges over a shipment of hemp seized by cops last month. For the first time, D.A. Eric Gonzalez’s acknowledged that the product contained less than .06 percent THC, “which makes it legal hemp under federal and, as of yesterday, state law.”
But according to Assistant District Attorney Kerry Rowe, “the new law does not change the penal law, under which any part of the cannabis plant, regardless of THC level, is considered marijuana.” The case was dismissed due to prosecutorial discretion, she added; not because distributing hemp is currently lawful in New York.
Following that logic, the NYPD would have every right to impound commercial quantities of the crop, then gloat on Twitter that they’d stopped the flow of drugs onto city streets. And they’d be under no obligation to return any confiscated hemp to its rightful owner.
“It doesn’t make any sense to me,” said Oren Levy, the defendant’s brother and owner of Green Angel CBD, which had ordered the product from Vermont. While Levy said he had followed the exact rules laid out by the state’s Department of Agriculture and Markets, he claimed the surprise enforcement means he’ll soon be forced to shutter his business.
The NYPD has so far declined to say whether they’ll return the shipment, worth an estimated $50,000 retail value. Even if they do, it’s likely no longer usable, Levy said, because it has not been properly stored and is no longer fresh.
“They’re still ruining my life right now,” he said, following the dismissal of his brother’s charges. “It’s one statement after another that doesn’t go with the facts.”
A spokesperson for the agricultural department, Jola Szubielski, declined to address the D.A.’s interpretation on the record, but said they were discussing the issue with state counsel. She pointed to a federal farm bill provision that legalized the transport of hemp across state lines when both states have hemp research programs—something that would seem to apply to New York.
But a spokesperson for the Brooklyn D.A., Oren Yaniv, had a different reading of that provision, arguing that the hemp distributor would have to be licensed by the research program in the state where they operate. If not, possession of hemp could still be prosecuted under the penal code.
According to legal experts, the tension between the state’s antiquated definition of “marihuana”—which does not distinguish between parts of the plant that get people high—and Governor Cuomo‘s vow to transform New York into a “global leader” for the hemp industry will likely continue to breed confusion.
“The problem for the Brooklyn DA is an unpopular, uninterpretable and unenforceable law,” said Jeffrey Fagan, a law professor at Columbia University. “It must be confusing to police, whose default response is to make arrests, even if they are tossed out by prosecutors. The arrests won’t stand, yet the law forces DA’s to choose between a poorly written law and defending the cops for enforcing it.”
For now, Levy says he plans on filing a lawsuit, with the goal of recouping the money he’s lost in the past month and keeping his business afloat. On Wednesday, attorney Sanford Rubenstein intends to file a notice of claim against the NYPD and the city for $12 million in damages on behalf of the brothers.
“We’re living in a completely new world,” Levy told Gothamist. “The state and the police need more education because this is our future.”