CPL §160.58 Sealing is Retroactive

It has come to our attention that there are a very small number of jurisdictions that are still debating the issue of whether Conditional Sealing under CPL §160.58 should be applied retroactively to cases that began and were completed prior to October 2009, the statute's effective date.  We at CCA believe there should be no debate.  CPL §160.58 was intended to be retroactive, the language of the statute indicates it is retroactive and many diverse sources and jurisdictions agree it should be applied retroactively.

The plain language of CPL §160.58(1) clearly contemplates retroactive eligibility for Conditional Sealing.  CPL §160.58(1) states, in part, that a person who has been convicted of certain offenses who “has successfully completed a judicial diversion program under article two hundred sixteen of this chapter [Judicial Diversion], or one of the programs heretofore known as drug treatment alternative to prison, or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section.” [emphasis supplied]

The Legislature could have explicitly stated that this statute would only apply prospectively.  It did not.  Rather, it explicitly included the clause “heretofore known as drug treatment alternative to prison,” which indicates a consideration of judicially sanctioned drug treatment programs that have been in existence for many years, including drug court and district attorney sponsored diversion programs.  This language indicates that the Legislature intended the statute to be retroactive.

On July 7, 2009, Michael Colodner of the Unified Court System circulated a memo to all Supreme Court Justices and County Court Judges Exercising Criminal Jurisdiction.  In that memo, Mr. Colodner set out the Unified Court System’s understanding of the 2009 DLRA.  Footnote 6 of that memo states that the Conditional Sealing statute applies retroactively:

Conditional sealing is available not only to cases arising under CPL Article 216, but also to cases diverted to “one of the programs heretofore known as drug treatment alternative to prison [D-tap] or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” (CPL 160.58(1)). Because the D-tap program started in 1990, any defendant who successfully completed a D-tap or similar program and who is otherwise eligible for conditional sealing may request sealing pursuant to CPL 160.58

Colodner July 7, 2009 memo, p. 4, footnote 6 [emphasis supplied]

The Unified Court System’s reading of the statute is endorsed by Judge Barry Kamins, who wrote an article describing the provisions of the 2009 DLRA for the New York State Bar Association, New York Criminal Law Newsletter in the Fall of 2009.  Judge Kamins, who is generally accepted as a reliable authority in the field of criminal law in New York State, affirmed the retroactive nature of CPL §160.58 by writing:

the sealing may be done in cases where the defendant has been convicted and sentenced after successfully completing a judicial diversion program, or a drug treatment program that was in existence prior to the judicial diversion program.  Thus this provision allows defendants who have completed drug treatment in existing drug treatment courts around the state to immediately file motions for conditional sealing.

New York Criminal Law Newsletter, Fall 2009, page 6 [emphasis supplied]

The Division of Criminal Justice Services (DCJS) also has indicated its belief that Conditional Sealing eligibility is retroactive.  DCJS has tracked implementation of the 2009 DLRA, including Conditional Sealing, and has provided quarterly briefings CCA staff members have attended.  These briefings reveal two important points. 

First, since October 2009 (the date of enactment of the Conditional Sealing statute), there have been several Conditional Sealing applications granted across the State.  Given that most Judicial Diversion, drug court, and district attorney sponsored  diversion programs take 18-24 months to complete, it is not conceivable that these Conditional Sealings were granted prospectively; that is, they must have been granted retroactively for completion of judicially sanctioned diversion programs that began (and may have been completed) prior to the effective date of Conditional Sealing statute. 

Second, at each of these briefings, Sean Byrnes, Acting Commissioner of DCJS, has evinced his belief that Conditional Sealing is retroactive, stating that his agency was prepared for even more Conditional Sealing applications to be granted in the months immediately following the effective date of Conditional Sealing.

It is worth noting that many of the Courts who have so far ordered Conditional Sealing pursuant to CPL §160.58 must have done so retroactively, as the Conditional Sealing occurred before clients would have had time to get through a judicially sanctioned treatment program by the time of the sealing. See DCJS Preliminary Impact of 2009 DLRA October 2010 report.  In addition, CCA has successfully represented clients who have obtained Conditional Sealing on old cases without drawing an objection from DAs or Courts about the retroactivity of CPL §160.58.  In one case, CCA successfully obtained Conditional Sealing of a 1989 conviction for which the person completed a judicially sanctioned treatment program much like DTAP and drug court.

Finally, it bears emphasizing that the plain language of the statute is consistent with the overall intent of the Legislature in enacting the 2009 DLRA.  As one court concisely stated, the 2009 DLRA designs “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.”  People v. Danton, 27 Misc.3d 638, 895 N.Y.S.2d 669 (N.Y. Sup. February 02, 2010)  It was the intent of the Legislature to expand access to treatment and more therapeutic sentencing options to as many criminal defendants as was reasonably possible.  To that end, it does not comport with the stated intent of the DLRA of 2009 to read CPL §160.58 in such a restrictive way as to prevent past successful participants in judicially sanctioned treatment the opportunity to argue to a Judge that some of their criminal convictions should be sealed from the public eye.

This debate should be brought to an end.

Eligibility-Neutral Offenses Should Not Exclude Diversion Participants

CPL §216.00(1) lists the charges that make a defendant eligible to be considered for Judicial Diversion.  It goes on to list certain conditions that can result in exclusion from Diversion, absent prosecutorial consent.  An issue has arisen when clients are charged in the same indictment with charges that have been specifically listed as eligible offenses, and at least one charge which is not listed as an eligible offense or an exclusion offense, herein referred to as “eligibility-neutral offenses”.  Some DAs and courts have opined that the presence of an eligibility-neutral offense in the charging document renders such defendant ineligible for Judicial Diversion.  Some trial Courts have ruled that the presence of eligibility-neutral offenses does not preclude participation in Diversion.  CCA’s website has links to the related cases we are aware of at this time:

Eligibility Neutral Cases Chart

Holding Eligibility Neutral Charges Do NOT Exclude

People v. Earl Jordan (Westchester Co., J Capeci, Aug. 24, 2010)

People v. Amir Kithcart (Onondaga Co., Judge Merrill, Jan 19, 2010)

Holding Eligibility Neutral Charges DO Exclude

People v. Sheffield, (NY Co., Judge Nunez, February 4, 2010)

People v. Jaen, (NY Co., Judge Ellen Coin, March 19, 2010)

A strong argument is that the overall plain reading of the statute does not indicate eligibility neutral offenses are a bar to participation.  The legislature saw fit to list the specific exclusions to participation in Diversion, and even those exclusions can be overcome with DA consent.  There is no reason to believe that the Legislature intended the sweeping, ameliorative reforms of the 2009 DLRA to be thwarted by the presence of neutral charges not specifically listed in CPL §216.00.   Such a finding would also allow the State to dictate who would be eligible for Diversion simply by ensuring eligibility-neutral offenses appear in the indictment.

See the CCA website @ Tools for Defense Attorneys > Defense of Drug Offense Cases > Eligibility Issues for a memo regarding eligibility neutral offenses.  This document was prepared by CCA in consultation with and a review of motions and arguments prepared by Roger Brazil, Office of the Public Defender, Monroe County, and Joanne M. Dwyer, New York, NY.  

Please alert us to any judicial decisions on this issue, written or oral, so we can continue to track the state of the law on Eligibility-Neutral Offenses.

CPL §440.46 Resentencings: Peter Preiser’s revised 10 year look back commentary

CPL §440.46(1) allows for the resentencing of “Any person in the custody of the department of correctional services 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” except as is provided in CPL §440.46(5).

CPL §440.46(5)(a) defines an “exclusion offense”, in part, as one of certain crimes for which the person was “previously convicted within the preceding ten years…”.

In an effort to limit the reach of CPL §440.46, some DAs have argued that the ten year look back should be measured from the date of commission of the drug offense rather than from the filing date of the resentencing application.  Most trial courts rejected this argument, holding that the ten year look back should be measured from the date of the resentencing application.  A limited number of trial courts, including one in the 4^th Department, held otherwise.  

Currently the issue is pending in the 1^st Department (on an appeal from the prosecution where the resentencing application was granted) and in the 4^th Department (on an appeal from the defendant where resentencing was denied)  Some judges and District Attorneys have cited to the McKinney’s CPL §440.46 commentary authored by Peter Preiser to support their more limited reading of the statute, even as defense advocates argued that the appropriate date for the look back is the date of the filing for resentence.

In the 2009 commentary Mr. Preiser took the more restrictive position that the 10 year look back should be measured from the time of the conviction for the potential exclusion offense to the date of the commission of the drug offense for which the defendant is seeking resentencing, as opposed to the date of the filing for resentence.

Upon further review, and to his credit, Mr. Preiser has recently amended his CPL §440.46 commentary:

“In reviewing my Practice Commentary of 2009 and some of the opinions that have struggled to interpret the time period for exclusion set forth in subdivision 5(a), it occurred to me that while the statement I made as to the calculation of the time between the crimes was not incorrect, it certainly was an inadequate interpretation of the time period intended for determining “exclusion” from eligibility, which is more properly related to the date of defendant’s application for resentence. Please accept this attempt to be more explicit, which is incorporated in a reproduction of the 2009 commentary, edited in that regard.”

The commentary is now edited to read in pertinent part:

“As I read the statute, the paragraph (a) exclusion for a previous conviction within the preceding ten years means from the date of the predicate sentence to the date of the present application for resentencing on the Class B felony, less time spent under incarceration between commission of the predicate and present crimes.”

Advocates should put Mr. Preiser’s candid “attempt to be more explicit” to good use.

Must a client plead guilty to ALL charges to enter Diversion over DA objection?

CPL §216 does not appear to require it, and at least one Judge says “no”.

CPL §216 created Judicial Diversion.  Diversion was intended to give Judges across the state the authority to put appropriate defendants into a drug treatment program designed by the Court, even if the District Attorney was not in agreement with that disposition.

CPL §216.05(4) states that the “eligible defendant shall be required to enter a plea of guilty to the charge or charges…”  Thus there is no question that, absent a finding of exceptional circumstances or consent of the DA as described later in CPL §216.05(4), a plea to something is contemplated by the statute.  But §216 does NOT specify that a plea to the entire charging document is necessary.

The debate then becomes whether CPL §216 trumps the normal plea constraints of CPL§220.10(4) which states:

4. Except as provided in subdivision five,[certain plea bargain limitations] where the indictment charges two or more offenses in separate counts, the defendant may, with both the permission of the court and the consent of the people, enter a plea of:

a) Guilty of one or more but not all of the offenses charged; or

b) Guilty of a lesser included offense with respect to any or all of the offenses charged;

c) Guilty of any combination of offenses charged and lesser offenses included within other offenses charged.

This statute would appear to imply that, without the consent of the DA, the potential Diversion client must plead to all counts to enter the Diversion program.

Not so, ruled Judge Jeffry R. Merrill, Acting County Court Judge of the

Syracuse Community Treatment Court

in People v. Adolfo Taveras. The Judge relied on the plain language of CPL §216 and the legislative intent of the Drug Law Reform Act of 2009 to allow the judiciary to tailor appropriate drug treatment programs for eligible defendants and held:

“It is the court that sets the parameters for treatment. Concomitantly, it is the court that has been given the authority to fashion suitable plea bargains.  The court has been given control of defendant’s treatment program from start to finish…Accordingly, it is the determination of this court that the CPL 216 language…does not mandate a guilty plea to each and every count of a multi-count indictment prior to defendant’s entry into the judicial diversion program.”

If other Judges are receptive to this argument, suitable Diversion participants may be able to limit the number of charges they must plead to in order to gain access to Diversion.  Creative lawyers may also be able to seek additional ways to encourage Judges to expand their authority in other areas of CPL §216 procedures.