Monday, January 10, 2011

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.

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