Judicial Diversion: The Contract or Agreement Should Provide for Sealing
Since the pre-Judicial Diversion drug courts that first began in the 1990s, jurisdictions across New York have varied in the outcome of successful completion of a diversion program, some dismissing the charge and sealing the arrest and prosecution records pursuant to CPL § 160.50, some reducing the charge to a violation conviction, and sealing pursuant to CPL § 160.55, and others reducing the charge to a non-sealable, criminal conviction. In some jurisdictions, defendants have had charges dismissed or reduced to a violation, but have been required to waive sealing as a condition of participation in drug court. The 2009 DLRA not only established the felony Judicial Diversion Program, but it also enacted CPL § 160.58, which allows for the sealing of drug-related convictions. As a whole, the 2009 DLRA is strong evidence that the Legislature intended that successful participation in the Judicial Diversion program would result in the sealing of arrest and prosecution records. Recent decisions, however, reveal that this issue is not being addressed sufficiently in the diversion contract or agreement prior to participation in the Judicial Diversion program, resulting in inconsistent and, in some cases, detrimental sealing outcomes.
A brief overview of the three different sealing statutes helps to provide the context for a full appreciation of the issues and possible resolutions and strategies for defense counsel:
1) CPL § 160.58 (conditional sealing): Enacted as part of the 2009 DLRA, this statute allows a person to have a drug-related criminal conviction sealed as long as the person successfully completed the Judicial Diversion program or another similar judicially sanctioned treatment program and any sentence imposed. This sealing results in records being conditionally sealed – DCJS, law enforcement and court records are sealed, but the defendant’s fingerprints are not destroyed and the records are automatically unsealed if the defendant is subsequently arrested for another criminal offense. Conditionally sealed convictions are included in the protections set forth in Human Rights Law § 296(16), meaning that an employer or occupational licensing agency cannot consider such convictions in making employment or occupational licensing decisions. A special benefit of conditional sealing that is not included in the other sealing statutes is that in addition to sealing the incident conviction, a defendant can also have up to three prior misdemeanors drug convictions sealed.
2) CPL § 160.55 (partial sealing): Individuals convicted of a non-criminal offense (a violation), automatically get the benefit of partial sealing under CPL § 160.55. Partial sealing means that the defendant’s fingerprints are destroyed and DCJS and law enforcement records are sealed, though court records are not. Like conditional sealing, CPL § 160.55 sealing falls within Human Rights Law § 296(16), offering the defendant protections against having the violation conviction considered in the employment context. Unlike conditional sealing, CPL § 160.55 sealing is permanent.
3) CPL § 160.50 (full sealing): Arrest charges that result in a disposition “favorable to the accused” get the benefit of full sealing under CPL § 160.50. Dispositions “favorable to the accused” are defined in subsection (3) of CPL § 160.50, and include, for example, ACDs or dismissals in the interests of justice. Full sealing provides for destruction of fingerprints and the permanent sealing of DCJS, law enforcement, and court records. Like CPL § 160.55 and CPL § 160.58 sealing, CPL § 160.50 sealing is included in Human Rights Law § 296(16), offering the defendant protections in the employment context.
A series of cases out of New York County illustrates the inconsistent results that occur when defense counsel fails to insist that the diversion contract or agreement clearly identify the specific disposition and appropriate sealing that will follow. Prior to the 2009 DLRA, the Manhattan Drug Court contract provided that successful completion would result in a dismissal of the charges, though the defendant was required to “waive” CPL § 160.50 sealing. After enactment of the 2009 DLRA, the contract retained the old provisions for dismissal of the charges and waiving of CPL § 160.50 sealing, though for Judicial Diversion program participation, the contract was amended to include a provision stating that the court would consider conditional sealing. Upon successful completion of Judicial Diversion, however, defendants met strong opposition from the prosecution when they sought to have the arrest and prosecution records conditionally sealed. The prosecution argued that conditional sealing is available only where there is a conviction and sentence, not when the charge has been dismissed. The prosecution also opposed CPL § 160.50 sealing, asserting that successful completion of Judicial Diversion is not specifically listed in CPL § 160.50(3) as a disposition “favorable to the accused.” At least two superior court justices in New York County have agreed with the prosecution, and in unreported decisions have denied those who successfully complete Judicial Diversion any kind of sealing, notwithstanding language in the diversion contract that contemplates sealing.
At least two other justices, however, have honored the Judicial Diversion contract language and the legislative intent to seal records after successful completion of the Judicial Diversion program, although each justice relied upon a different sealing statute in dong so. In Peoplev. Smith (Padro, J., New York County), Justice Padro held that it was proper to conditionally seal the defendant’s arrest and prosecution records after she successfully completed the Judicial Diversion program and after the charge was dismissed. The court rejected the argument that CPL § 160.58 did not apply to dismissed arrests, reasoning that CPL § 160.58 must be “examined within the context of the entire statutory scheme implemented by the legislature and as a corollary statute to Article 216.” In Peoplev. JG, 2012 Slip Op 22136 (Weinberg, J., New York County), Justice Weinberg disagreed with Justice Padro’s solution to the sealing dilemma, although not the outcome of sealing, stating that where “the defendant has been allowed to withdraw his guilty plea and the case has been dismissed without sentence having ever been imposed, the conditional sealing provisions of CPL § 160.58, literally, do not apply.” Justice Weinberg went on to concisely summarize the dilemma as follows:
The only option for the successful Judicial Diversion Program participant who has had his case dismissed is to petition for sealing under the provisions of CPL § 160.50. This deprives that defendant of the opportunity of having up to three prior eligible misdemeanor convictions sealed. It also deprives the People of the advantages of a CPL § 160.58 conditional sealing as opposed to the more rigorous restrictions the People face under CPL § 160.50 sealing. This anomaly should be addressed by the legislature.
Though the diversion agreement did not provide for CPL § 160.50 sealing, Justice Weinberg ultimately concluded that since the defendant had entered the program pursuant to a contract that included sealing as an option, “essential fairness leaves the Court with no option except to consider sealing under CPL § 160.50.”
Defense attorneys should take two cautionary lessons from this decision. First, the Judicial Diversion contract should include a sealing provision that lawfully comports with the disposition provided for in the contract. This means that until the legislature addresses the anomaly Justice Weinberg has identified, defendants who seek to benefit from having up to three prior drug misdemeanor convictions sealed will likely have to agree to a disposition other than dismissal of the charges in order to retain their eligibility for sealing pursuant to CPL § 160.58. Second, the importance of negotiating a Judicial Diversion contract or agreement that thoughtfully addresses the sealing dilemma cannot be overstated. While some defendants may prefer a contract or agreement that provides for a reduction to a drug misdemeanor, thereby ensuring that the defendant is eligible for conditional sealing of the diversion program conviction and up to three prior misdemeanors, others may prefer the more permanent nature of CPL § 160.50 sealing. For these defendants, the contract or agreement should contemplate a dismissal in the interests of justice or an ACD – both of which are specifically defined as dispositions favorable to the accused. If an outright dismissal is not possible, counsel should consider negotiating for a reduction to a violation, and sealing pursuant to CPL § 160.55. What the best option is will depend on your client’s particular circumstances and of course, what is realistic in your particular jurisdiction.