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Court Decides Defendant Not a Good Candidate for Judicial Diversion Program


On May 24, 2011, a Kings County, New York man was arrested during the execution of a search warrant. The search warrant was the result of an undercover investigation that covered more than four months. On 13 separate occasions, undercover police officer’s observed the man in possession of heroin and in possession of cocaine. They also observed him sell heroin and cocaine on these occasions.

The case was referred to the Brooklyn Treatment Court on August 16, 2011. The man had requested to be considered for Judicial Diversion of his case. Judicial Diversion is a program that was designed for certain felony offenders spelled out in Criminal Procedure Law Article 216. It grants the judges authority to decide which nonviolent offenders have committed their offenses as a result of substance abuse or dependence. They are then given the opportunity to avoid a jail sentence by contracting with the state to complete a court monitored treatment program.

Criminal Procedure Law Article 216 defines the eligible offenders for Judicial Diversion as those “charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses listed in CPL § 410.91(4), so long as they do not have a disqualifying condition listed in CPL § 216.00(1).” The District Attorney then decides who among these offenders is eligible. There are to be no violent or Class A felony offenders allowed into the program. The statute does not speak to the inclusion of misdemeanor crimes which are lessor included offenses to the felony charges that an offender has committed.

In this case, the subject was charged with several Class B,C, D and E felonies. He was also charged with several lessor included misdemeanors. The court evaluated this situation and determined the following. They decided that since the statute does not specifically reject the concept that misdemeanor crimes can be committed as the result of an addiction that the addition of a misdemeanor offense does not automatically disqualify an offender from being in the program. In this situation, since the offender was not guilty of any prior violent offenses, he does qualify under the letter of the law.

The Judge, however, determined that he is not a good candidate for the program. The determination was made in part, because the judge felt that the crimes in which he was charged were not appropriate to the essence of the program. The offender in this situation was selling drugs in concert with another party. The court ruled that these are not the acts of a dependent drug user, but rather a businessman making a sale.

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