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.

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.

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)]

A New Third Department CPL §440.46 Class B Resentencing Case. Sort of.

On January 27, 2011 the Third Department decided People v. Marion Samuels.  Mr. Samuels had pleaded guilty in 2000 to a B felony on certain conditions.  Eventually he was sentenced to a lengthy indeterminate sentence.  Following the DLRA of 2009, Mr. Samuels applied for resentencing under CPL §440.46 in the Sullivan County Court.

Judge Labuda denied the application for resentence on January 6, 2010.  The Third Department reversed and remitted the matter back to County Court for redetermination of the defendant’s motion, but not for the reasons one might expect:

“We reverse. While County Court was entitled to deny

defendant's application if "substantial justice dictate[d]" such

a result (L 2004, ch 738, § 23; see CPL 440.46 [3]), it could not

base that denial upon misinformation or materially untrue

assumptions (see People v Naranjo, 89 NY2d 1047, 1049 [1997];

People v Braithwaite, 62 AD3d 1019, 1020-1021 [2009]). A court

is directed to consider a defendant's prison disciplinary history

in weighing his or her application for resentencing and, in this

case, defendant had incurred six disciplinary citations during

his current term of incarceration (see CPL 440.46 [3]). In its

decision, however, County Court overstated the severity of

several of them. While the People suggest that this

overstatement was a typographical error that did not affect

County Court's decision, we are not at liberty to make that

assumption. County Court's express mention of "three Tier III

hearings" in its decision "indicates that [it] probably

considered them to be material" (United States v Stein, 544 F2d

96, 102 [2d Cir 1976]; see Townsend v Burke, 334 US 736, 740

[1948]; People v Barnes, 60 AD3d 861, 863-864 [2009]; People v

Metellus, 46 AD3d 578, 579 [2007], lv denied 10 NY3d 814 [2008]).

As "material false assumptions as to any facts relevant to

sentencing . . . renders the entire sentencing procedure invalid

as a violation of due process," we must remit this matter for

County Court to redetermine defendant's motion (United States v

Malcolm, 432 F2d 809, 816 [2d Cir 1970]; see People v

Braithwaite, 62 AD3d at 1020-1021).”

Although the holding does not turn on issues specific to CPL §440.46, it stands as an excellent reminder to monitor the quality of the information relied upon by the sentencing court and to object to any “misinformation or materially untrue assumptions.”

Just to add to the confusion in this case, the Third Department also found it necessary to direct the lower Court to determine what exactly was the defendant’s actual original sentence: 12 ½ to 25 or the more unique sentence of 12 ½ to 20 years as it appears in the sentencing transcript.

Regardless of its reasons, the Third Department has ordered that Mr. Samuels be allowed to return to the Sullivan County Court for the court to reach the issue of whether "substantial justice dictates" that the application for resentence should be denied, this time without relying on any "material false assumptions."