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Courts Discuss Judicial Diversion Program

A New York Criminal Lawyer said that, in October 2009, the Legislature empowered judges to consider placing defendants accused of committing certain felony drug-related offenses into treatment, rather than sending them to prison. The target population for inclusion in this “judicial diversion” program are those individuals who have a “substance abuse or dependence” problem, CPL § 216.05(1), and who commit crimes, including sale of narcotic drugs and other controlled substances, to support their own drug habits.

A New York Criminal Lawyer said the objective is to have defendants who are addicted to or dependent on drugs successfully complete treatment and thereby remove the need for these individuals to commit crimes in order to make money that to buy drugs for their own use. The Legislature made judicial diversion contingent upon a court’s finding that a defendant’s “alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior.” CPL § 216.05(3)(b)(iii). Thus, judicial diversion is not an option for casual, recreational drug users, or for entrepreneurial, for-profit drug sellers with no active drug use problem. In these drug cases, the facts indicate that defendants are no longer part of the “target population” of felony offenders who are candidates for judicial diversion, even though they were in diversion programs at the time of the new crimes.

A Bronx Drug Possession Lawyer said that, in the first case, defendant was arrested on his previous case in September 2009, and charged with, inter alia, criminal sale of a controlled substance in or near school grounds. The case was presented to a grand jury and an Indictment was filed. Following this defendant’s arraignment on the indictment, a he was evaluated for judicial diversion and found acceptable for residential drug treatment. He reported an addiction to, or dependence on, marijuana.

A Nassau County Criminal Lawyer said that, in February 2010, he pled guilty to violating Penal Law § 220.44 (2), and was referred to a residential drug treatment program, for a period of from eighteen to twenty-four months. During the plea allocution, defendant signed a written contract, under which he agreed to remain compliant with all the rules and regulations of the drug treatment program, to refrain from any illicit drug use, and to live a law abiding life and not be arrested while he was in treatment. He was released from custody to the program on March 4, 2010.

A Queens criminal Lawyer said that two weeks later, defendant left the program, against medical advice, and was terminated from that program. Thereafter, the judge then presiding over the case gave him a second chance and agreed to place him in another residential treatment program, this one run by another. Defendant was routinely screened for any drug use while in the program, and the results consistently showed that he was not using marihuana, or any other illicit substance.

On July 16, 2010, defendant Denton appeared in Court for a scheduled compliance update. The treatment house again reported that he had not been using any illicit substances, had not been rearrested, and was compliant with treatment. The case was adjourned to September 24, 2010 for the next update. After he left court, and presumably while en route to Phoenix House, he was arrested and charged with criminal sale of a controlled substance in the third degree. He was subsequently indicted on that charge.

In terms of the second case, defendant she had been arrested on September 19, 2008, and was subsequently charged in Indictment 4502/08, along with two other defendants, with criminal sale of a controlled substance in the third degree, pursuant to Penal Law § 220.39 (1). She was alleged to have sold selling heroin to an undercover police officer, and the officer indicated that defendant personally delivered the heroin sold. The case was on the court’s calendar no fewer than eleven times during 2009, and was ultimately set down for trial in January 2010. During the trial defendant, apparently for the first time, expressed an interest in judicial diversion. The case was adjourned until March 3, 2010 for a possible disposition.

Thereafter, she told the Court that she was not interested in court-ordered drug treatment, and the case was adjourned until April 28, 2010 for trial. She failed to appear; however, she did come to court the next day and indicated that she had changed her mind and was once again interested in being considered for judicial diversion.

On May 19, 2010, following an evaluation by TASC (Treatment Alternatives Supreme Court), defendant Diaz was found appropriate for out-patient treatment. During the evaluation, defendant reported using heroin on a daily basis between 2007 and 2009; however, she claimed she had not used heroin since being placed in a methadone program in 2009. As a condition of her “judicial diversion” contract, in addition to agreeing to the same terms, defendant was also required to report to the TASC office once a week for drug screening and additional counseling. She states that alprazolam tablets, known at times by the brand name Xanax, were given to her at Concourse Medical as part of her treatment plan.

A Bronx Drug Possession Lawyer said that, on August 2, 2010, defendant was arrested, after a police officer alleged he observed her sell an alprazolam pill to another individual. It is alleged that she had additional alprazolam pills in her possession, as well as $ 255.00. The alleged buyer was also apprehended, and the alprazolam pill allegedly sold was recovered from that individual. Defendant was subsequently indicted and charged with criminal sale of a controlled substance in the fifth degree, pursuant to Penal Law § 220.34.

The issue in these cases is whether defendants should be permitted to plead guilty to the felony drug sale charges in these indictments under the parameters set forth in Article 216 of the Criminal Procedure Law, the “judicial diversion” statute, where their alleged crimes occurred while defendants were already in court-mandated treatment programs based on pleas to felony narcotics sales on previous indictments.

The Court declines to order an evaluation pursuant to CPL § 216.05 (1), post-indictment, in either case. In order for these defendants to be placed into treatment, they would have to plead guilty to the felony charges in the new cases. That would require an admission that they knowingly and unlawfully sold controlled substances. They were in treatment based upon pleas to selling controlled substances after a finding was made that they did so at that earlier time to support a narcotics addiction problem.

Defendants were not using illicit drugs or testing positive for illicit drug use at the time of their new arrests; indeed, there were no such positive results for months, and possibly years, prior to the newest arrests. Thus, there is no basis for the Court to find that either defendant was selling controlled substances to others while they were in treatment because they had relapsed into drug use, and needed the money to support their habit.

In the second case, the People acknowledge that they have no information to support a finding that she was selling alprazolam for any reason related to current illicit drug use. Their position, in substance, is that since she has a heroin addiction, she should receive another judicial diversion plea because she was only in court-mandated treatment for a few months and should get a second opportunity, and be allowed to remain in court-ordered treatment. The Court, however, can find no legal basis for ordering a judicial diversion evaluation in her new case, or, for that matter, in first defendant’s case. In both cases, the information before the Court leads to only one finding based upon all of the facts available to the Court in rendering its determination-that these defendants returned to drug selling solely to make money.

Finally, the Court believes that agreeing to place these defendants into diversion for the new cases would result in their receiving an undeserved and direct legal benefit. When a defendant successfully completes a judicial diversion program, a court has the option of dismissing the felony case outright or, at most, allowing that defendant to withdraw the felony plea and allow the defendant to re-plead to a misdemeanor. CPL § 216.05 (10).

In these cases, based on the facts before the Court, that result does not seem to be what the legislature intended when they enacted this statute. By agreeing that these defendants can plead guilty to these new drug sales with the commitment that they would have these new felonies erased from their records at a later date, the Court believes that it would be sending send a clear message that it was condoning dismissal of indicted drug sale cases which have no demonstrable connection to any active drug use. For this reason as well, defendants’ applications to be placed in judicial diversion on the new indictments are denied.

Are you facing drug crimes or marijuana possession? Seek the legal advice of a Bronx Drug Crime Attorney and Bronx Criminal Attorney at Stephen Bilkis and Associates.

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