Tuesday, August 30, 2011

Court Weighs in On the Availability of Conditional Sealing Following a Dismissal Upon Completion of Judicial Diversion

Earlier this month, Supreme Court Judge Eduardo Padro issued a written decision in People v. Smith, (New York County) regarding an issue that has plagued defendants in some jurisdictions, particularly Manhattan, since the Judicial Diversion Program went into effect in October, 2009.  In 2009, Ms. Smith was allowed to participate in the Judicial Diversion Program, with the promise that if she completed her out-patient substance abuse treatment, her plea would be vacated and the case would be dismissed in its entirety.  The Court also promised to consider sealing the arrest and prosecution records pursuant to CPL § 160.58.  This section of law specifically allows courts to conditionally seal cases of defendants who have completed the Judicial Diversion Program as well as other judicially sanctioned treatment programs. 

Upon her successful completion of the Judicial Diversion Program, Ms. Smith applied to the court for conditional sealing pursuant to CPL § 160.58.  The prosecution opposed, claiming that CPL § 160.58 only applies to defendants who have been convicted and sentenced.  Since Ms. Smith’s case had ultimately been dismissed, the prosecution claimed that she was never sentenced and therefore was ineligible for conditional sealing.  The prosecution also claimed that Ms. Smith was not eligible for full sealing under CPL §160.50 since completion of the Judicial Diversion Program is not specifically listed in §160.50(3) as a “termination in favor of the defendant.”  Of course, taken to its logical conclusion, the prosecution’s hyper-technical interpretation of the two sealing statutes means that defendants like Ms. Smith would be better off with a conviction and CPL §160.58 sealing than having their cases dismissed altogether.  Surely, in enacting CPL §160.58, the Legislature never intended such an absurd result.    

Luckily, Judge Padro refused to adopt the prosecution’s overly narrow interpretation of the term “sentence,” and instead reasoned 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.”  Judge Padro further stated that CPL § 160.58 was, “passed granting the court additional authority to fully carry out the purpose of Article 216.”  As with many Judicial Diversion cases, there was no “final sentence” as Ms. Smith’s case was ultimately dismissed.  However, in refusing to narrowly interpret the term “sentence” within CPL § 160.58, Judge Padro reasoned that Ms. Smith was subjected to a “conditional sentence” as she entered the Judicial Diversion program following her guilty plea.  Judge Padro ultimately ruled that the since Ms. Smith had successfully completed the Judicial Diversion Program, she was eligible to have her case conditionally sealed.  

            Unfortunately, the two other Manhattan judges in the Judicial Diversion part – Judge Coyne and Judge Nunez – have previously held that sealing under either CPL § 160.50 or  §160.58 is not available to defendants who have their cases dismissed after successful completion of the Judicial Diversion Program.  Nonetheless, People v. Smith provides defense counsel an effective tool to argue that CPL § 160.58 sealing should be available in such cases.  Of course, in many counties, courts are sealing such dismissals pursuant to CPL § 160.50, as dismissals in the interests of justice, which is specifically included in CPL § 160.50(3) as a “termination in favor of the defendant.”    

The possibility that either CPL § 160.50 or CPL § 160.58 sealing may be available raises the question: is one sealing better than the other?  Since the benefits of each type of sealing are slightly different, the answer depends on the particular circumstances of your client.  While sealing under CPL § 160.50 is permanent, sealing under § 160.58 is only conditional, meaning the records will be automatically unsealed if the defendant is subsequently arrested for a criminal offense.  However, CPL § 160.58 sealing does allow for up to three prior misdemeanor drug offenses to be sealed in addition to the instant offense. For some clients, the benefit of sealing these prior misdemeanors may outweigh the conditional nature of CPL § 160.58 sealing.        

(The copy of People v. Smith that is linked to this blog has been redacted to fully honor the sealing that was afforded Ms. Smith.  Attorneys who require an unredacted copy to advocate on behalf of their clients should contact Jeff Leibo at CCA)

Friday, August 19, 2011

Third Department Rules that Defendants Convicted of an "Exclusion Offense" Following Release from Prison are Eligible for Resentencing

On August 11, 2011, the Third Department decided People v. Devivo, NY Slip Op 06195.  The case involves a defendant convicted of Criminal Sale of a Controlled Substance in the 3rd Degree who received a sentence of 3 to 9 years in prison.  While on parole for this drug conviction, the defendant was convicted of Burglary in the 2nd Degree (a violent felony), in addition to two non-violent felonies, and was sent back to prison.  Burglary in the 2nd Degree is considered an “exclusion offense” for purposes of resentencing under the Drug Law Reform Act.  The issue here is whether an “exclusion offense” committed after release from prison renders a defendant ineligible for resentencing.

All four Departments have now ruled that the look-back period for an “exclusion offense” is measured from the date of the defendant’s motion for resentencing.  In the instant case, the County Court Judge denied the defendant’s motion finding him ineligible for resentencing due to the subsequent “exclusion offense” within the 10 years preceding his motion for resentencing.  The Third Department rejected this conclusion, essentially ruling that the 10 year look-back period didn’t even apply to this offense pointing out that the statute refers to a “previous felony” and a “present felony”, but not to a felony committed following the defendant’s release.  As such, the defendant was found legally eligible for resentencing.  Unfortunately, upon making this finding, the Third Department deferred to the County Court’s conclusion that given the defendant’s post-release conviction and conduct while incarcerated, substantial justice dictated that the application be denied. 

In summary, defendants with a conviction for an “exclusion offense” following their release from prison on a class B drug offense conviction may be legally eligible for resentencing.  In such cases however, counsel should be prepared to face strong opposition from the prosecution who will argue that “substantial justice” dictates a denial of the resentencing application.  For more information on the issue of “substantial justice”, please see our previous blog dated 8/12/11.  

Friday, August 12, 2011

First Department Weighs in on the “Substantial Justice” Issue and Grants Resentencing

With its decision in People v. Paulin, NY Slip Op 05544, the Court of Appeals rejected attempts to limit eligibility for resentencing on class B drug offenses.  The focus of resentencing applications now turns to a new issue.  The primary goal is now to ward off the prosecution’s attempt to convince the Court that “substantial justice” demands a denial of resentencing.  The Appellate Division weighed in on this issue in People v. Milton, 2011 NY Slip Op 05981 (1st Dept.).  The case involved a defendant convicted of two counts of Criminal Sale of a Controlled Substance in the 3rd Degree.  The Bronx County Supreme Court cited his failure to complete a drug treatment program as their reason for denying his application for resentencing.  Despite this, the Appellate Division overturned the lower court decision citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  Attorney David Crow at the Legal Aid Society in New York City has prepared a Motion to Reargue/Renew based on the decision in Milton.  Please contact CCA for a copy of this motion.  

In addition to Milton, there have been several positive lower court decisions addressing this issue.  People v. Jones, (New York County Court), provides a detailed analysis of the “substantial justice” issue, and is a must read for any attorney filing a resentencing application.   In Jones, the defendant was similarly convicted of a sale offense.  His parole was revoked twice, and his record in prison included three disciplinary infractions.  He was also subsequently convicted of a misdemeanor resulting in local jail time.  In granting his request for resentencing, the Court cited the 2004 Drug Law Reform Act which indicates that a defendant shall be resentenced pursuant to §§ 60.04 & 70.70 unless substantial justice dictates that resentencing be denied.  “Simply put, there is a strong presumption in favor of granting a resentencing application for all eligible defendants.” People v. Lopez 10 Misc.3d 1056(A). 

Prosecutors have attempted to argue that only “users” and the lowest level drug sellers should be resentenced, and that others with higher level offenses should be denied resentencing citing “substantial justice” but as Lopez points out,

“…the Act is not limited to the lowest level participants.  To the contrary, the Act introduces a new sentencing scheme which covers all levels of participants.  The new scheme is consistent, moreover, with the legislature’s general preference for determinate sentences and post-release supervision rather than indeterminate sentences and parole.” 

In other cases, it is the defendant’s prison record that is the determining factor, but, “there is nothing in case law or DLRA-III (or its predecessors) that establishes that an inmate’s disciplinary history is the dispositive factor in deciding whether to offer re-sentence.” People v. Robert Hairston, (Bronx County, J.Alvarado, February 10, 2010).  In fact, in People v. Walltower, (Queens County, J.Kohm, April 6, 2010), the Court granted the defendant’s request for resentencing despite accruing 32 infractions while in prison, 21 of which were 3rd tier. 

Since the purpose of resentencing under the DLRA is to correct overly harsh sentences, resentencing is not something that must be earned by a defendant.  Each of the cases cited above point to the conclusion that resentencing should only be denied in the rarest of cases.    “Put another way, in order for a court to completely deny resentencing, the facts and circumstances of an offender’s instant crime, criminal history, institutional record and other relevant facts must point so strongly against resentencing, when considering notions of fairness, reasonableness and due process, as to authoritatively command that an application be completely denied.” Jones.   

Thursday, August 4, 2011

Kings County Decision Illustrates the Extent of Judicial Authority in Article 216 Diversion Cases

In Kings County, Supreme Court Judge Jo Ann Ferdinand recently issued a written decision in People v. Cefarello, 32 Misc.3d 1204(A) regarding Judicial Diversion.  Since there are so few written decisions on the topic, we felt it was worth some discussion.

The case involved a defendant with 2 prior drug felony convictions for which he had previously served time in state prison.  He sought participation in Judicial Diversion for his most recent arrest for CPCS 3rd and Endangering the Welfare of Child.  The District Attorney would not consent to Judicial Diversion, but did consent to the defendant participating in the District Attorney-run DTAP program which required placement in a long-term residential treatment program.  The defendant rejected this offer, arguing that participation in Judicial Diversion with outpatient treatment was clinically more appropriate.

The good news is that the Court did not simply agree to the program consented to by the District Attorney.  The Judge understood that it was ultimately her decision to determine whether or not the defendant was appropriate for Judicial Diversion, and if so, what the treatment modality should be.  Additionally, she saw the value in conducting a hearing, during which she took testimony from the defendant’s substance abuse treatment expert and considered information obtained from research studies about the effectiveness of various treatment programs.  This aspect of the decision may prove helpful to attorneys who find themselves in jurisdictions where judges do not hold Judicial Diversion hearings or are inclined to allow the District Attorney’s Office to dictate whether or not an eligible defendant will be accepted to the Judicial  Diversion program, and if so, the modality of treatment to be offered.   

While we credit the Cefarello Court for holding a hearing and recognizing her ultimate authority to determine whether or not a defendant is eligible for Judicial Diversion, regardless of the prosecution’s position, it is unfortunate that she rejected the defense expert’s recommendation that the defendant be placed in an outpatient treatment program.  The Judge instead ordered that the defendant be placed in a residential treatment program, citing two reasons: 1) her concern for public safety; and 2) research about the effectiveness of different treatment modalities.  As for the public safety concern, it is true that taking the defendant off the street via residential treatment may secure public safety in the short term, but judges should be persuaded to look at what would be most effective in the long term.   Removing the defendant from his community, where there are more supports in place, could produce negative results for the defendant once discharged from residential treatment.  This is especially true for defendants who risk losing employment or stable housing if placed in residential treatment.  This is why treatment providers do not recommend residential treatment in all cases, but instead reserve this recommendation only for those who have severe substance abuse problem.   

As for the Court’s second reason – the research – the Judge cited two studies included in the Drug Abuse Treatment Outcome Studies (DATOS), which is a project of the National Institute on Drug Abuse (NIDA).  A summary of these studies can be found at www.datos.org.  Unfortunately, we were only able to find free access to one of the studies (Simpson et al) in its entirety.  Please contact the Center for Community Alternatives for information regarding the second study (Hubbard et al).  The Cefarello Court summarized the studies as standing for the proposition that residential treatment programs of at least three months duration are particularly cost effective for use with criminal justice clients.  But neither study supports this general proposition in all cases.  One of the studies, (by Hubbard et al.) points out that treatment durations of 3 months or more were associated with more positive outcomes, regardless of whether the treatment was residential or outpatient. The second (by Simpson et al.), points out that residential treatment is more effective for individuals whose substance abuse dependence was identified as severe.  However, this study goes on to state that, “Patients with moderate levels of problem severity can be treated with comparable effectiveness in either [long term residential] or outpatient drug-free (ODF) treatment if they stay for a minimum of 90 days.” 

It is possible that the Cefarello decision may be improperly relied upon by other courts as supporting the proposition that residential treatment is always more effective, particularly by courts that mistakenly look to residential treatment as a means of getting a defendant “off the streets” rather than as a tool for dealing with a severe substance abuse problem.   Effective advocates can draw upon the treatment literature to explain what propositions are supported by the research, and which are not, to help Judicial Diversion judges make clinically appropriate decisions about the modality of treatment for defendants who could benefit from treatment rather than punishment.        

Monday, July 25, 2011

All Four Departments Now Agree on the Ten Year "Look Back" Calculation for Resentencing

In People v. Carter, 2011 NY Slip Op 05821, the Third Department joined the three other Departments in their determination regarding the ten year “look back” calculation for resentencing applications.  The Court ruled that when determining whether the defendant has a prior felony that would be an exclusion offense as to preclude a motion for resentencing, the “look back” period is measured from when the defendant filed the motion for resentencing.  All four Departments have now soundly rejected the argument from prosecutors across New York State that the “look back” period begins at the time of the conviction for which the defendant seeks resentencing.  As discussed in this blog on March 10, 2011, the three previous cases were People v. Hill, 82 A.D.3d 77 (4th Dept. 2011), People v. Williams, 82 Ad3d 796 (2nd Dept. 2011) and People v. Sosa, 81 AD3d 464 (1st Dept. 2011)

The Court of Appeals granted cert in People v. Sosa, the first of these cases to be decided.  The case is expected to be heard some time this fall.  In light of the unanimity of all four Departments, it is unlikely that the Court of Appeals will chart a contrary course. 

Monday, July 11, 2011

A Not So Happy 40th Anniversary of the "War on Drugs"

Recently, the New York Times published “Drug Bust”, an article written by Charles M. Blow discussing the 40th anniversary of President Nixon’s declaration of war on drugs.  When this war began four decades ago, drug abuse was indeed a huge problem in the United States.  The fact that drug abuse continues to be such a huge problem is a clear indication of the failure of this policy.  While Nixon correctly identified a worthy cause, the strategy used to address this problem was all wrong.  Instead of attacking the problem at the source, by providing treatment to those with substance abuse problems, this misguided approach, “turn[ed] people who should have been patients into prisoners.” Blow also points out that this “overwhelming thirst for punishment” has hit African Americans particularly and disproportionately hard. 

Although the Report of the Global Commission on Drug Policy declared the war on drugs to be a failure, the battle rages on.  Over the past 40 years the number of drug related arrests has continued to increase.  Spending for national drug control has also continued to increase, totaling over 25 billion taxpayer dollars for this year.  It’s time to funnel our state and national resources into solutions that can actually work.  Proper treatment as an alternative to prison has proven to reduce crime, and also save money.  We must continue to push for more vibrant implementation of judicial diversion provided for in CPL § 216.  Treatment alternatives hold out the best hope for public safety and public health.  

Wednesday, June 29, 2011

In Two Brief But Strongly Worded Decisions, Court of Appeals Rejects Attempts to Limit Eligibility for Class B Resentencing

In two concise but strongly worded decisions issued yesterday, the Court of Appeals effectively put an end to attempts by district attorneys and courts across the state to limit the reach of resentencing eligibility for those still serving indeterminate sentences for a class B drug offense.  Specifically, in People v. Paulin, Pratts, and Phillips, the Court of Appeals held that “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under” CPL § 440.46, the resentencing statute for class B drug offenders currently serving indeterminate sentences.  In a companion case, People v. Santiago, the Court of Appeals held that those who apply for resentencing while in prison, but are released prior to the application being decided, are eligible for resentencing despite their release.

As discussed below, these two decisions have potentially broad implications for anyone who is still in prison or under parole supervision after having received an indeterminate sentence for a class B drug offense.  It also has clear implications for those individuals who are in prison on a parole violation after having received an indeterminate sentence for a class A-I drug offense.   

First: An Overview of the Decisions

An Overview of People v. Paulin, Pratts and Phillips:
David Lance Paulin, Jesus Pratts and James Phillips were all convicted of class B drug offenses prior to 2005, and were therefore sentenced to indeterminate sentences under the harsh Rockefeller Drug Law sentencing scheme.  All three had previously been released from prison to parole supervision, but were reincarcerated after parole violations.  After the 2009 Drug Law Reform Act (2009 DLRA), which enacted CPL § 440.46, all three individuals, who were still in the custody of Department of Correctional Services (DOCS) on parole violations, applied to their respective sentencing courts to be re-sentenced to less harsh determinate sentences.  In all three cases, the sentencing courts denied the applications on the grounds that parole violators were not eligible to be re-sentenced.  Each appealed this decision.  Mr. Paulin’s and Mr. Pratts’ appeals went to the Appellate Division, First Department, which agreed with the lower courts and denied their appeals.  Mr. Phillips, whose appeal went to the Appellate Division, Second Department, fared much better.  In People v. Phillips, 82 A.D.3d 1011 (2nd Dept. 2011), the Second Department held that there is nothing in CPL § 440.46 that renders parole violators ineligible for resentencing.  Mr. Paulin and Mr. Pratts sought leave to appeal to the Court of Appeals, and in Mr. Phillips’ case, the prosecution sought leave to appeal. The Court of Appeals granted these leave applications and consolidated the three cases.

In a unanimous decision, the Court of Appeals held that there is nothing in CPL § 440.46 that renders parole violators ineligible for resentencing.  The Court began by reviewing the statute itself, concluding that under the plain language of CPL § 440.46, Mr. Paulin and Mr. Pratts[1] were eligible for resentencing because they were both in DOCS’ custody after having been convicted of class B drug felonies that were committed prior to 2005, they were both serving indeterminate sentences with a maximum exceeding three years, and none of the exceptions listed in CPL § 440.46(5) applied to them.  Having concisely stated that the plain language of CPL § 440.46 supported Mr. Paulin’s and Mr. Pratts’ eligibility for resentencing, the Court next addressed the prosecution’s argument that the defendants were ineligible because permitting them to be resentenced would “have the absurd result of rewarding them for their parole violations.”  The Court swiftly rejected this argument, stating:

“We see no absurdity.  The purposes of the 2009 DLRA ... was to grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low-level non-violent drug offenders’ that the Rockefeller Drug laws required.” 

The Legislature enacted CPL § 440.46 with a focus on those who were in prison; it makes no difference whether they were in prison having never been paroled or in on a parole violation.  In either case, they are in prison, and thus, directly enduring the harsh impact of the Rockefeller Drug Laws.  The Court went on to address its prior decision in People v. Mills and Then, 11 N.Y.3d 527 (2008), which disallowed resentencing for class A-II drug offenders who were in prison on a parole violation, and which prosecutors and other courts had relied upon in limiting class B resentencing eligibility.  The Court of Appeals clearly and unequivocally held that the Mills and Then decision applies only in an A-II resentencing context, and is a function of the nuances of the A-II resentencing statute, which limits eligibility to those who are “more than twelve months from being an eligible inmate as that term is defined in” Correction Law § 851(2).  Said the Court:

“Reading the 2005 [DLRA] with the Correction Law definition, we held in Mills ‘that in order to qualify for rentencing under the 2005 DLRA, class A-II felony drug offenders must not be eligible for parole within 3 years of their resentecing applications’.  This holding is irrelevant to the present case.” 

People v. Paulin, Pratts, and Phillips at 6 (emphasis added). 

An Overview of People v. Santiago:
Having decided that parole violators are eligible for resentencing, the Court of Appeals in People v. Santiago addressed the issue of whether a person who was in DOCS’ custody at the time she submitted an application for resentencing, but released to parole prior to the application being decided, is still eligible for resentencing.  In Ms. Santiago’s case, both the original sentencing court and the First Department held that her post-application release to parole rendered her ineligible for re-sentencing. The Court of Appeals disagreed, noting that while CPL § 440.46 is targeted to those in prison, the statute only says that the defendant “must be in custody when he or she applies for re-sentencing; it does not require that custody continue until the application is denied.”  The Court went further, and in a refreshingly candid acknowledgment of the disingenuous strategizing which district attorneys and courts have used to limit the reach of the 2009 DLRA, stated that: “to read that requirement into the statute would have significant disadvantages: it could produce gamesmanship, and unnecessary arbitrary result, by leading the parties, and perhaps some judges, to try and accelerate or slow progress toward a decision in the expectation that parole release will cause the application to fail.”         
What are the implications of these two decisions?  How can advocates obtain relief for their clients who are still enduring the overly punitive nature of the Rockefeller Drug Laws?
Second: The Potentially Broad Implications for People Who Are Still in Prison or Under Parole Supervision After Receiving an Indeterminate Sentence for a Class B Drug Offense.

The Court of Appeals decision in People v. Paulin, Paulin and Phillips has clear implications for class B drug offenders serving an indeterminate sentence who are still in prison.  Even those who are in prison on a parole violation are clearly eligible for resentencing under CPL § 440.46.  Similarly, People v. Santiago could not be more clear in stating that a person is eligible for resentencing under CPL § 440.46, even is she is released from prison before her resentencing application is decided. 

Both cases, of course, have significant implications for people who were previously erroneously denied resentencing because of their status as a parole violator or because they were released from prison before their resentencing application was decided.  Defense attorneys and defender offices now have the obligation of reaching out to these individuals to ensure that they are able to successfully re-apply for resentencing.           

Is there any potential relief for those who have been released to parole supervision?  The answer is: Maybe.  As discussed in our April 22, 2011 blog post, the New York State Budget Bill passed in March, 2011 effectively merged the Department of Correctional Services (DOCS) and the Division of Parole into one agency called the Department of Corrections and Community Supervision (DOCCS). The merger resulted in amendments to several statutes, including CPL § 440.46 to provide class B resentencing eligibility to those “in the custody of the Department of Corrections and Community Supervision.”  As set forth in our previous blog, this change seems to mean that those class B drug offenders who committed their crimes prior to 2005 and are still serving an indeterminate sentence are eligible for resentencing even if out of prison and on parole supervision.

This argument was presented to the Court of Appeals in supplemental briefings in both Paulin, Pratts and Phillips and Santiago.  In both cases, the Court of Appeals declined to directly address the argument, and instead stated that given the specific facts before it,  the Court “need not decide whether a 2011 amendment changing ‘department of correctional services’ to ‘department of corrections and community supervision’ altered the scope of the 2009 DLRA.”  People v. Santiago, at n. 1; see also People v. Pratts, Paulin, and Phillips, at n. 1.

This means that this issue remains unresolved.  It is therefore incumbent upon defense lawyers and defender offices to develop a strategy for best capitalizing on the potential for broader resentencing eligibility of people serving an indeterminate sentence for a class B drug offense, even if serving it while under parole supervision.                  

Third: The Broad Implications for People Who Are Still in Prison After Being Sentenced to an Indeterminate Sentence for a Class A Drug Offense

Since the Court of Appeals decision in People v. Mills and Then, 11 N.Y.3d 527 (2008), there has been debate as to whether class A-I parole violators are eligible for resentencing.  In 2006, in a decision often mis-read as applying to class A-I drug offenders, a Westchester Supreme Court held that a defendant in prison on a parole violation was not eligible for resentencing.  See People v. Bagby, 11 Misc.3d 882 (Sup. Ct., Westchester Co., 2006).  However, recently, in People v. Caban, 84 AD.3d 828 (2nd Dept. May, 2011) the Second Department held that “[n]othing in section 23 of the 2004 DLRA supports the Supreme Court’s conclusion that a person’s status as a parole violator renders a person ineligible to apply for resentencing in the first instance.”   

By making it abundantly clear that limitations to resentencing eligibility because of a defendant’s status as a parole violator are confined solely to the unique A-II resentencing legislation, the Court of Appeals in People v. Paulin, Pratts, and Phillips essentially re-affirms the Second Department decision in People v. Caban.  At this juncture, and given these two decisions, it is hard to imagine how any intellectually honest court could deny resentencing eligibility to a defendant serving an indeterminate sentence for a class A-I drug offense who is in prison on a parole violation. 

Finally:  Beyond Resentencing - Implications for Other 2009 DLRA Issues

The 2009 DLRA reforms included not only resentencing provisions, but also:

• enactment of CPL Article 216, which establishes a state-wide mechanism for Judicial Diversion for felony drug offenders;
• CPL § 160.58, which allows for the conditional sealing of drug convictions where a person completed a judicially sanctioned treatment program; and
• a host of amendments to DOCS programs, which allow for more judicial discretion and a more therapeutic response to drug-related crimes.           

As we have previously discussed in this blog, district attorneys across the State have worked hard at limiting the reach of the 2009 DLRA, most often by asking courts to limit eligibility, and often ignoring the plain language of the 2009 DLRA.  Because the 2009 DLRA was passed as part of the New York State Budget Bill, there was no accompanying bill jacket, and thus, no legislative memoranda to which to turn for a clear statement of legislative intent. 
The Court of Appeals decisions in People v. Paulin, Pratts and Phillips and People v. Santigao provide ample ammunition for defense lawyers to fend off arguments by district attorneys who seek to limit the reach of the 2009 DLRA.  In these companion decisions, the Court relied upon the statute’s plain language and refused to read into it non-existing limiting language.  But just as importantly, the Court of Appeals told litigants where to turn for a clear statement of legislative intent.  Specifically, in People v. Paulin, Pratts and Phillips, the Court relied upon press releases by Governor Paterson and the Assembly as the best indication of legislative intent.  Both press releases are available on CCA’s website, and both include language of legislative intent that supports a broad interpretation of the various provisions included in the 2009 DLRA. The two quotes below are just examples of how effective use of these press statements can help attorneys in advocating for their clients to obtain the therapeutic rather than punitive results promised in the 2009 DLRA: 

The [2009 DLRA] reforms … eliminate the harsh sentences that the Rockefeller Drug Laws mandated by giving judges total authority to divert non-violent drug addicts to treatment and greatly expanding drug treatment programs. 

The reform legislation enacted as part of the 2009 budget is based on the more enlightened and effective policy that drug addiction is a public health crisis and that drug treatment works.  The historic reform enacts a sensible, comprehensive and cost-effective approach for dealing with non-violent drug offenders and will ensure that drug abusers are able to access effective substance abuse treatment and counseling.        

It is hoped that the Court of Appeals companion decisions will go far in making the 2009 DLRA a reality.         

[1]    The Court of Appeals held that Mr. Phillip’s appeal was moot because he had reached his maximum expiration date. 

Tuesday, June 21, 2011


An article recently published in The New England Journal of Medicine, “Medicine and the Epidemic of Incarceration in the United States,” highlights the unprecedented expansion of the criminal justice system of the past four decades attributing much of the increase in the prisoner census to the “War on Drugs” and “our country’s failure to treat addiction and mental illness as medical conditions.”

The article first points out that the United States incarcerates a higher percentage of its population than any other country.  In fact, with only 5% of the world’s population, the U.S. houses 25% of the world’s prisoners.  The country is clearly heading in the wrong direction on this issue when a middle aged black man is more likely to have spent time in prison, than to have graduated college.  Over the past 40 years, the number of people in U.S. prisons has increased by more than 600%. This is despite the fact that the U.S. population has increased by only 50%.  

From a public health perspective the authors of this article conclude that addressing the needs of this vulnerable population is “not only an ethical imperative, but also of crucial importance from both a fiscal and a public health perspective.”  The article effectively presents the view that as alternatives to incarceration, addiction and mental health treatment programs are more humane and cost-effective and ultimately better address the underlying problems.

The article certainly lends support for New York’s 2009 drug law reform that included Judicial Diversion and can be used to advocate for a more robust use of this alternative.  “Locking up millions of people for drug-related crimes has failed as a public-safety strategy and has harmed public safety in the communities to which these (formerly incarcerated) men and women return.”  The article calls upon the medical community to become advocates for alternatives to imprisonment and drug-policy reform.  They would certainly be a welcome ally in the fight for drug law reform implementation.

Tuesday, June 14, 2011

Preparing for a Successful Conditional Sealing Motion

Perhaps the most underutilized portion of the 2009 Rockefeller Drug Law reform, CPL § 160.58 allows for the conditional sealing of felony and misdemeanor offenses defined in Articles 220 and 221 of the Penal Law and specified offenses defined in §410.91(5).  In addition, a maximum of three prior misdemeanor PL §§ 220 and 221 convictions may be sealed.  Conditional Sealing provides a meaningful second chance for individuals who have proven commitment to their rehabilitation.  The process of Conditional Sealing under this section may be initiated sua sponte by the court, or much more likely, by the defendant’s motion. 

Before preparing a sealing motion, counsel should first determine whether the defendant is eligible for such relief.  CPL § 160.58 lists the following three types of programs that, upon completion, can render a defendant eligible for conditional sealing: 

(i)                 a judicial diversion program under article 216 of the Criminal Procedure Law;

(ii)               one of the programs heretofore known as drug treatment alternative to prison; or

(iii)             another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as (i) and (ii).

The first category is self explanatory, and defendants are clearly eligible if they have completed a Judicial Diversion program under CPL article § 216.  With regard to the second category, though the Legislature did not specifically define “programs heretofore known as drug treatment alternative to prison,” this phrase is generally understood as meaning traditional drug courts and District Attorney sponsored diversion programs, commonly called DTAP programs.  See e.g. Barry Kamins, NYSBA Criminal Law Newsletter, Fall 2009, at 6; Office of Court Administration, July 7, 2009 Memorandum to All Supreme Court Justices and County Court Judges Exercising Criminal Jurisdiction, at 3-4.  With the third category, it is clear that the Legislature intended to expand the reach of conditional sealing beyond traditional judicial diversion and drug courts, and in so doing, opened the door to argue for sealing cases where defendants have completed treatment as a court-ordered condition of probation or where they have completed Shock Incarceration and the Willard Drug Treatment Program.  All of these programs can be judicially ordered, constitute alternatives to a lengthy period of incarceration, and include substance abuse treatment and supervision.  The Onondaga County Court has already ruled that court-ordered treatment as a condition of probation constitutes “another judicially sanctioned drug treatment program.”    

Finally, a defendant is not eligible for Conditional Sealing until he or she has also completed any imposed sentence. 

Upon determining that the defendant is eligible for conditional sealing, the next steps require counsel to gather information and prepare the motion.  When collecting information and writing a Conditional Sealing motion, counsel should keep in mind the factors the statute requires the judge to consider in making a decision regarding an eligible defendant.  Specifically, CPL § 160.58(3) states that the judge “shall consider any relevant factor, including but not limited to” the following:

(i)                 the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions;

(ii)               the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of the section;

(iii)             the defendant’s criminal history; and

(iv)             the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.” 

We encourage counsel to obtain the defendant’s official criminal history.  This will confirm that the primary offense is an eligible offense, and will also allow counsel to identify prior misdemeanor offenses that may also qualify for conditional sealing.  Counsel should also obtain information evidencing the defendant’s successful completion of the sentence(s) for each conviction to be sealed.  If this information is not “reasonably available,” a sworn affidavit is an acceptable alternative.  It would seem that the affidavit may be sworn by the defendant, although this is not explicitly stated in the statute.  Additionally, counsel should consider informing the court of any legal barriers to the job or occupation that the defendant wishes to pursue.  But even more importantly, as a general matter, counsel should inform the court of recent research showing that 90-93% of employers now screen job applicants for criminal records.  See e.g.  Society for Human Resource Managers, Background Checking: Conducting Criminal Background Checks (Jan. 2010 ) (survey of its human resource manager members found that 92% regularly conduct criminal background checks on job applicants);  National Employment Law Project (NELP), 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks  for Employment, (March 2011) (survey of postings on Craig's list and found that most employers regularly include in their on-line job postings a warning that people with a criminal record "need not apply.").  This information is useful in convincing the court that Conditional Sealing can go a long way in helping the defendant obtain stable, living-wage employment.  Furthermore, proof of any counseling programs completed by the defendant should be included.  Finally, any information showing the defendant in a positive light is helpful (e.g. character references, proof of community service, letters from counselors, evidence of job training).

The motion itself should specifically explain why the defendant is eligible for conditional sealing and why the defendant is a good candidate for this relief.  If the defendant has completed a judicial diversion program under CPL § 216, or a drug court program, convincing the judge of your client’s eligibility should not be difficult.  On the other hand, if your client has completed another “judicially sanctioned drug treatment program,” this task may be more challenging.  This language is rendered meaningless if courts limit Conditional Sealing eligibility to completion of only Judicial Diversion, drug court, or DTAP; clearly the Legislature included this language to expand the reach of Conditional Sealing.  CCA is happy to partner with lawyers who are willing to push for full implementation of this statute to include those who have completed judicially sanctioned programs such as judicially ordered Shock, Willard or judicially ordered treatment under the supervision of probation.  A positive bench decision and a memo of law regarding this issue can be found on CCA’s website, or by clicking on the links below:

            Finally, in this area of law that is still new, it is important that the early cases generated on the topic are positive.  Counsel should be careful in the selection of cases in which conditional sealing is requested.  Attorneys can learn from cases such as People v. Modesto, 32 Misc3d 287.  In Modesto, the Court denied the defendant’s motion for conditional sealing.  Although the defendant completed Shock as well as an inpatient treatment program while under parole supervision, neither of these programs were court ordered, and as such, not judicially sanctioned as § 160.58 requires.  This alone would have been reason enough to deny the application.  But the Court went further, and in what is nothing more than dicta, pointed out many perceived flaws with the application including the defendant’s failure to provide his criminal history, any specific proof of adverse effect upon employment opportunities, or the defendant’s failure to include a copy of the Certificate of Relief from Disabilities he claimed he had obtained.  None of this information is required by the statute, but it does impose a heavy burden on applicants.  We can only hope that other courts do not adopt the increased burden placed on Conditional Sealing applicants by the Judge in this decision.  Additionally, the court complained that no character evidence was submitted on behalf of the defendant other than proof that he had completed business training.  It is important to remember that CPL § 160.58(3) requires that the Judge consider the defendant’s character in making a conditional sealing decision.  As such, letters of recommendation may be important.  Overall, this case illustrates the importance of adequate preparation and of carefully analyzing a case before filing a motion for Conditional Sealing to determine whether defendant is or is not an eligible and appropriate candidate.  

Friday, April 22, 2011

Eligibility for 2009 DLRA Resentencing Expanded and Clarified by Amendment to CPL § 440.46

The most recent New York State Budget Bill was signed into law on March 31, 2011.  This law effectively merges the Department of Correctional Services (DOCS) and the Department of Parole into one agency called the Department of Corrections and Community Supervision (also referred to as the “Department”).  In addition to the merger, the bill amended CPL § 440.46 and in doing so expanded and clarified the scope of those eligible for resentencing.  The amendment became effective immediately, and can be found at L 2011, Ch. 62, Part C, Subpart B, § 79.  The law now reads as follows: 

Any person in the custody of the department of [correctional services] CORRECTIONS AND COMMUNITY SUPERVISION convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed the sentence.”

When the amendment to CPL § 440.60 is read in conjunction with the amendment to Executive Law § 259-i(2)(b), it is clear that the amendments intend for those under community supervision to be considered in the custody of this new Department and eligible for resentencing.  Executive Law § 259-i(2)(b) reads as follows:

“Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department [of correctional services or], the department of mental hygiene or THE OFFICE OF CHILDREN AND FAMILY SERVICES shall, while on presumptive release, parole, conditional release or post-release supervision be in the legal custody of the DEPARTMENT until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post release supervision, or return to imprisonment in the custody of the department, as the case may be.

The amendment is meaningful and the broader impact of CPL 440.46 is consistent with the overall theme of this section of the legislation.  Any argument that this merger was only for financial reasons is quelled by the legislative intent portion of the bill.  The legislative intent focuses on promoting successful and productive reentry and reintegration for both incarcerated individuals and individuals under community supervision. 
“In view of the commonality of purpose governing the fundamental missions of both agencies, a single new state agency should be created to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person from the day of sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” 

The amendment of CPL 440.64 impacts the eligibility of two categories of defendants.  The first group is those who filed for resentencing while still incarcerated, but were released to parole before resentencing occurred.  The amendment clarifies and confirms that these individuals are covered by the statute since they are now clearly in the custody of the newly created Department of Corrections and Community Supervision, even after their release onto parole (now “community supervision”).  The same is true for defendants who file for resentencing after being released from prison and placed on parole.

Furthermore, the amendment to Executive Law § 259-i(2)(b) clarifies the custodial status of those defendants who have been reincarcerated following a parole violation.  Some courts have reasoned that parole violators returned to prison were not in the custody of DOCS, and therefore not eligible for resentencing under 440.46.  That argument now falls by the wayside as this amendment rejects such reasoning.  Parole violators who are reincarcerated are now clearly in the custody of the new joint Department. 


5/4/11 UPDATE:   Although Westlaw has not yet updated CPL 440.46, there is a red flag that directs you to budget bill where the changes can be seen.  The statute has however been updated on the New York Assembly's website and can be found at the following link: New York CPL 440.46.

Tuesday, April 12, 2011

Defendants Should be Thoroughly Prepared for their Alcohol and Substance Abuse Evaluation

An eligible defendant desirous of being considered for judicial diversion triggers that consideration by making a request for an alcohol and substance abuse evaluation to a Superior Court Judge.  Pursuant to CPL §216.05(1) the case should then be referred to either the Superior Court for drug treatment or any other part in Superior Court designated as a Drug Treatment Court by the Administrative Judge for judicial diversion (See New York Rules of the Chief Administrative Judge, § 143.2(c)).  In order for the evaluation to be prepared, the defendant will be interviewed by a court approved entity or licensed health care professional experienced in alcohol and substance abuse treatment, or an OASAS credentialed counselor.  The report generated as a result of this interview is an important factor in determining whether a defendant will be offered the option of judicial diversion. 

Recent decisions have highlighted the fact that inconsistent statements made by a defendant can substantially harm his or her chances of being approved.  In People v. Hombach, ___ N.Y.S.2d ___, 2011 WL 1136549 (N.Y.Co.Ct.), 2011 N.Y. Slip Op. 21112, the court specifically noted that,

“In reviewing the alcohol and substance abuse evaluation the defendant’s answers are inconsistent.”

The court went on to point out that the defendant desired no treatment according to one form he filled out, yet orally indicated that he was tired of using drugs and wanted to change, but could not do so on his own.  This was one factor used by the Court to deny this defendant’s request for judicial diversion. 

Inconsistencies drawn out during the alcohol and substance abuse evaluation were also pointed out by the court in People v. Jordan, 28 Misc.3d 708, 902 N.Y.S.2d 336. 

“Ms. Cardona told the Court that the defendant said he had not used cocaine or drank alcohol since July 2009.  This information is not contained in the report, but it contradicts at least in part a statement attributed to the defendant in that report indicating ‘he was using alcohol and drugs at the time of the current offense.’”

While these types of inconsistencies cannot be avoided altogether, proper preparation prior to the interview can minimize these instances.  This is certainly not to suggest that defense counsel tell their clients to lie.  On the contrary, counsel should instruct their clients to be forthright and honest.  Many inconsistencies are the result of confusion or simple error by the defendant.  The cases suggest however that this type of error can prove quite costly.  Counsel should provide defendants with a general idea of what types of questions they can expect to be asked including questions regarding the timing and duration of alcohol and drug use, and prior treatment received.  This will allow defendants to get their facts straight before they are questioned by the evaluator.  Additionally, defendants should be educated regarding the issues that the Judge will consider when deciding whether or not to offer them judicial diversion.  Through their responses at the evaluation, defendants arguably have the ability to impact the Judge’s decision regarding three of the five issues discussed in CPL § 216.05(3)(b).  As such, defendants should be made aware that they will only be offered judicial diversion if the judge finds the following:

1.  The defendant has a history of alcohol or substance abuse or dependence;

2.  such alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior; and

3.  the defendant’s participation in judicial diversion could effectively address such abuse or dependence.

Defendants should be encouraged to not only admit but thoroughly discuss their problems with alcohol and substance abuse, and the negative impact these problems have had on their lives including how it has led to criminal behavior.  They must also demonstrate the desire and determination to address those problems in the hope that this will empower them to avoid future criminal activity. 

Another way for defense counsel to ensure the best possible alcohol and substance abuse evaluation for their clients is to first discuss with them the pros and cons of judicial diversion.  This discussion should remove any ambivalence the defendant may have about seeking judicial diversion.  It is this ambivalent or lesser committed defendant who is often screened out.  While the pros are more obvious, the cons are sometimes overlooked.  The benefits of judicial diversion for defendants include the avoidance of jail or prison, potential record sealing, and perhaps most importantly, the opportunity to properly address their alcohol or substance abuse problem so that they may lead a healthy and law abiding life.  Defendants must also consider the potential consequences if they fail to complete the program.  When this happens, many courts are sentencing defendants to a harsher sentence than otherwise available under a plea deal, effectively punishing defendants for trying treatment, but failing.  As such, entering into judicial diversion will result is a much longer prison sentence hanging over a defendant’s head.  Furthermore, defendants also must be aware of the time commitment required to complete the program.  This will have to be balanced with any other commitments that they may have including employment.  Judges look favorably upon defendants who understand the program and display confidence that they can fulfill their obligations and succeed.  

Monday, March 21, 2011

Second Department Finds Parole Violators Are Eligible for Resentencing Under the 2009 DLRA

In People v. Phillips, __ A.D.3d __, 2011 NY Slip Op 02038, decided last week, the Second Department held that a parole violator who is reincarcerated on a parole violation for a class B drug offense, and who otherwise meets the eligibility criteria for resentencing set out in CPL § 440.46, is eligible to apply for resentencing.  The Second Department reasoned that:

                        “…[n]othing in CPL 440.46 supports a conclusion that such
                        status (as a parole violator) renders a person ineligible to
                        apply for resentencing in the first instance.”

In Phillips the Second Department soundly rejected the conclusion of the Appellate Division, First Department, in People v. Pratts, 74 A.D.3d 536, 537, lv granted 15 N.Y.3d 895, and in People v. Paulin, 74 A.D.3d 685, lv granted 15 N.Y.3d 854.  In Pratts and Paulin the First Department engrafted the specific eligibility requirement of the 2005 DLRA onto the 2009 DLRA, which had the effect of making parole violators ineligible for resentencing under the 2005 DLRA (which applies to A-II drug offenses) by limiting eligibility for resentencing to only those individuals who were more than three years from parole eligibility. (Obviously a parole violator could never be more than three years from his next parole board appearance because of the limit of a two year hit from board to board).   The Second Department made short work of this fiction, refusing to engage in a so-called interpretation of legislative intent of the plain meaning of CPL § 440.46.  Clearly this would be needlessly using “legislative intent” as an excuse to legislate.

                        “We do not agree with the conclusion of the Appellate
                        Division, First Department, that interpreting the statute
                        to permit parole violators to apply for resentencing would
                        be “contrary to the dictates of reason and leads to
unreasonable results.”
The key to the Phillips analysis is the Court’s ability to read and distinguish the language authorizing a motion for resentencing under the 2005 DLRA from the separate and distinct language of the 2009 DLRA.  It was this recognition that eligibility for resentencing for a class A-II drug offense is not the same as the eligibility criteria found in CPL 440.46 for a class B offense that formed the basis for the decision in Phillips.

One might say that the Second Department took the First Department to school on this one.

This issue is pending a decision in the Fourth Department in People v. Wallace.  The final word will come from the “headmaster” when the Court of Appeals hears Pratts and Paulin on appeal in late spring.  That decision will let us know if school is out.

Thursday, March 10, 2011

Second and Fourth Departments Adopt the First Department’s Interpretation of the Ten Year “Look Back” in CPL § 440.046

On February 11, 2011 we posted a new decision alert for the First Department case of People v. Sosa,  ___ A.D.3d ___, 916 N.Y.S 72 which was the first Appellate Division to rule on the interpretation of CPL 440.46’s ten year “look back” to determine whether a prior felony would be an exclusion offense so as to preclude a motion for resentencing.  As you may recall, the First Department adopted the defendant’s interpretation, an interpretation that we had suggested was the proper one dating back to the enactment of this statute.

Now the Second Department in People v. Williams (2011 WL 747920) and the Fourth Department in People v. Hill (2011 WL 589646) have joined the First Department, concluding that the proper interpretation of the ten year “look back” requires that it be measured from the date of the motion for resentencing and not, as the prosecution has contended in cases around the state, from the date of the commission of the felony for which the defendant seeks resentencing.  In Hill the Fourth Department soundly rejected the prosecution’s proposed interpretation of the statute, concluding:

            “…the People’s suggested interpretation is wholly at odds
            with the wording of the statute and would require us to rewrite
            the statute.  This we cannot do.”

Although this issue would now seem to be settled, with even Peter Preiser abandoning the prosecutor’s suggested interpretation in his Practice Commentary, the prosecution continues to pursue its soundly rejected interpretation as it seeks leave to appeal to the Court of Appeals in Sosa.  In light of the fact that there is a consensus among the three Appellate Divisions that have considered this issue, we are hopeful that the Court of Appeals will deny leave.

Friday, February 25, 2011

CPL Article 216 Judicial Diversion Implementation Hampered by an Inability to Transfer Interim Probation Supervision

CPL Article 216 created Judicial Diversion, an initiative intended to give judges wide discretion over which substance addicted defendants should be offered the opportunity for treatment instead of incarceration.  Judges were also empowered to create a specific treatment plan for Diversion participants, including the option of requiring defendants to appear in court at any time to monitor progress in treatment.  The Diversion Court “shall retain jurisdiction of the defendant” during the period of the defendant’s participation in Diversion.  See CPL §216.05(8)

When Judicial Diversion was created, the legislature essentially handed the practical aspects of implementation over to the Unified Court System.  Court Administrative Rules were promulgated, effectively shunting Judicial Diversion cases into existing Drug Treatment Courts in many counties and creating Judicial Diversion parts in other counties.  Significantly, many existing Drug Treatment Courts, and some Diversion Courts rely heavily upon interim probation supervision to monitor their participants, although not required to do so.

CPL §390.30(6) sets out the mechanics and limitations of interim probation.  There is no explicit provision to transfer interim probation supervision between counties, not even for the purpose of monitoring compliance with court ordered treatment.  Compare this with CPL §410.80 that authorizes the transfer of probation supervision and jurisdiction to the county of residence of the defendant.  It is interesting to note, however, that CPL§390.30(6) does not expressly prohibit interim probation transfers, either.  Thus it appears that it is a question of statutory interpretation and legislative intent as to whether a Diversion Court, or any other Court, could order interim probation supervision to be transferred to the county where the defendant resides.  The Office of Probation and Correctional Alternatives has interpreted these statutes to prohibit transfer of interim probation, and at least some Courts have joined in that interpretation.

As a result of this restrictive interpretation, a significant problem has arisen in Judicial Diversion cases.  Defendants are often charged with crimes in counties in which they do not reside.  Eligible and appropriate defendants who seek judicially sanctioned drug treatment frequently have only one option: the existing treatment court in the charging county, which they may enter via either Drug Treatment Court or Judicial Diversion.  Yet if the defendant lives outside the county of the Drug Treatment Court, some charging courts believe they cannot order transfer of interim probation supervision outside the county.  

It is also our understanding that Probation Departments are not willing or able to cross county lines to supervise interim probation defendants.  The end result is that some Judges are simply not comfortable allowing out of county defendants into treatment, even if they reside in a contiguous county, because they cannot presently be supervised by interim probation. This result undermines the legislative intent of both CPL Article 216 and the entirety of the 2009 DLRA.

We believe that there are ways around the total exclusion of appropriate Judicial Diversion candidates because of this glitch in interim probation.  As stated above, we believe that the statutes leave open the possibility that a court can order the transfer of interim probation supervision in the first instance, which would serve to eliminate this problem entirely.

Absent such an intrepid court order, a court may still order interim probation supervision for a defendant regardless of where the defendant resides.  CPL §390.30(6) states that where the court determines that a defendant is eligible for a probation sentence, after consultation with the prosecutor (note: not the agreement or consent of the prosecutor) and upon the consent of the defendant, the defendant may be placed on interim probation.  There is nothing in the statute that requires the defendant reside in the same county as the court making the interim probation order. 

The Office of Probation and Correctional Alternatives frowns upon the transfer of Interim Probation supervision to the county of residence because of specific statutory authority, however OPCA cannot prevent the Court from issuing the interim probation order, and arguably should not be able to ignore such an order.  The statute requires “The defendant’s record of compliance shall be included in the presentence report…and the court must consider such record and information when pronouncing sentence.” CPL §390.30(6)(a) (emphasis added).  It would seem difficult for Probation to completely ignore the Court’s order of interim probation and still remain compliant with the statute, regardless of the location of the defendant’s residence.  

If the court is inclined to seek a way to offer an eligible defendant treatment via Diversion and construct supervision conditions without interim probation supervision, there is ample authority for creating such conditions in CPL §216.05(5).  The court can mandate conditions of treatment and court reporting as it sees fit.  There is no reason the court could not enlist the assistance of services in the outside county for the purpose of supervision.  Local reentry programs, Pre-Trial Release agencies, Alternative to Incarceration (ATI) providers or local treatment entities in the outside county can give updates on the client’s status.  In addition, the defendant can be required to appear in court as directed or could be ordered to report to the probation department in the Court’s jurisdiction on a regular basis.  With creativity, there is no reason to exclude potential Diversion participants simply because supervision under interim probation may not be available. 

Regardless of these alternative solutions, this issue is in need of a legislative fix to give the court the option of interim probation supervision for out-of-county defendants where necessary and prudent.  We would like to hear from any advocates who have run into this unfortunate problem.  Please comment below or contact us directly with your information.

Thursday, February 17, 2011

Treatment Courts Should Enter Into Diversion Agreements That Cap the Potential Sentence.

CPL §216.05(5), (6), (8), (9)(c) and (10) all mention an “agreement” between the Court and the defendant.  This agreement can be on the record or in writing.  It shall include a specified period of treatment and MAY include periodic court appearances, urinalysis and a requirement to refrain from criminal behaviors.  The statute implies, but does not explicitly direct, that the agreement contain a description of what will occur if the defendant successfully completes Diversion or what sentence will be imposed if the defendant is unsuccessful in Diversion.   See CPL §216.05(9)(c): The Court must “when applicable proceed with the defendant’s sentencing in accordance with the agreement.”

Judges in some jurisdictions have taken the position that this language means the court need not cap the sentence for a Diversion participant.  These courts explicitly retain the right to sentence a participant to the “full range” or the “potential maximum” sentence if the defendant is terminated from Diversion and sentenced.

There are many reasons, both statutory and practical why Courts should include sentence caps in agreements:

A.  The language of the statute can be construed to strongly imply that there should be an agreement on sentence as well as on the conditions of participation in Diversion.  CPL §216.05(9)(c) refers to sentencing in “accordance with the agreement.”  Every other aspect of the statute regarding the agreement takes pains to give the Court options to tailor the terms of Diversion participation to the specific defendant based upon that individual defendant’s problems and needs of service.  There is every reason to believe that the legislature intended the Court to also individualize the sentence based upon the participant’s prior record, individual characteristics and the facts of the case before it.  Every case and every client is different.  The legislature encouraged Courts to make the specific Diversion plans, including the potential range of punishment, fit each individual client.

B.  There is much less incentive for potential participants to sign up for the challenge of Judicial Diversion if they face the potential maximum punishment for a failed attempt at treatment.  Generally in criminal cases defense counsel is able to negotiate a plea bargain that exchanges an admission of guilt for a sentence less than the maximum sentence, often much less.  Such a negotiated plea should provide a baseline for the client's sentencing exposure while participating in Diversion.  Many clients will be reluctant to participate in Diversion absent a negotiated cap.  Many defense lawyers will be reluctant to advise clients to participate in Diversion if the maximum sentence remains available to the treatment court simply because the client has opted to try treatment and failed. 

C.  Peter Preiser’s Commentary in McKinney’s CPL §216 indicates strong support for the idea of a sentence cap as part of the agreement to enter Diversion:

“And in consideration of the defendant’s agreement the court will make a commitment as to the ultimate disposition of the criminal charge if defendant abides by the conditions of the program and an alternative sentence if the defendant does not…”
            Preiser’s analysis of the statutory language clearly contemplates that the Court is obliged to articulate a certain sentence in consideration for the client agreeing to do the Diversion program.  Preiser also encourages that the conditions of this agreement be put in writing prior to any guilty plea.

D. There are studies that suggest defendants are more motivated by certainty of punishment rather than severity of punishment.  See “Deterrence in Criminal Justice-Evaluating Certainty vs. Severity of Punishment” (November 2010 Sentencing Project Report summarizing research on the limited value of severe sentences.)  There is little evidence to support the position that an uncertain sentencing threat increases compliance with the Diversion agreement.  Caps on sentence, along with a system of supervision that creates a certainty of detection for violations, are more effective in gaining compliance with supervision.

E.  Some Diversion courts have agreements in which a specific cap is articulated, but the participant is informed on the record that if the client is arrested for a new offense while in Diversion, or if a bench warrant has to be issued for the person at any point, the cap on sentence is removed and the full range of sentence becomes available.  Although there is still a question about whether a failure in treatment warrants an enhanced sentence which is more than what the defendant would have received at the beginning of the case, at least in those jurisdictions the client is somewhat protected from the maximum sentence.

If such contracts are not being used in your jurisdiction, Counsel can produce their own written contract, and include a provision for a cap on sentence.  Even if rejected this could at least open discussions about such a cap.  A sample contract from Monroe County can be found on the CCA website here.

Friday, February 11, 2011

NEW DECISION ALERT!! First Department Decides CPL §440.46 Ten-Year Lookback Case!

Drug Law Reform advocates have been awaiting a definitive ruling regarding the 10-year lookback provision of CPL §440.46(5)(a) which serves to exclude from resentencing people “previously convicted within the preceding ten years” of certain felony offenses. 

The issue has been: to what time frame does that language refer?  Is it the time between the previous potential exclusion conviction and the commission of the drug offense for which resentencing is sought, or the longer and more inclusive time period from the previous potential exclusion conviction to the filing of the motion for resentence?  After tremendous work by Barbara Zolot and the Center for Appellate Litigation, the First Department has decided it is the latter.

In People v. Sosa, Judge Marcy J. Kahn held in strong and sweeping language that the 10 year lookback period “runs back from the date of the resentencing application, and not from the date of the drug offense upon which the defendant seeks resentencing.”

The Court held that the plain language of the statute supports such interpretation.

“While the People seek to interpret that provision to mean the 10 years preceding the commission of the present felony, that interpretation strains the plain meaning of the statute.  The provision uses the simple phrase ‘preceding 10 years’, without reference to the date of commission of the present felony.  By its plain meaning, it would mean the 10 years preceding the resentencing application, since no other time period is set forth.”

The Court also considered the ameliorative purpose of the statute, as well as the protection of the public from violent drug offenders.

“Measuring the lookback period from the date of the application would permit drug offenders with violent pasts to eventually become eligible as those pasts fade into history, rather than making them permanently ineligible.  This interpretation would also be consistent with the statute’s public safety concerns, since it would still exclude persons with recent violent backgrounds.”

For good measure the Court threw in that “…the maxim expressio unius est exclusion alterius also supports the court’s determination. 

Take that.

This decision will allow many people who might have been precluded from arguing for resentencing to at least get their day in court.  Hopefully the other Departments of the Appellate Division will eventually follow suit.  But for now, People v. Sosa stands as the law of the land in New York on the CPL §440.46(5)(a) 10 year lookback provision. [See Mountain View Coach Lines, Inc. v. Storms 102 A.D.2d 663, 476 N.Y.S.2d 918(2nd Dept. 1984)]