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.

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