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.