Friday, April 22, 2011

Eligibility for 2009 DLRA Resentencing Expanded and Clarified by Amendment to CPL § 440.46

The most recent New York State Budget Bill was signed into law on March 31, 2011.  This law effectively merges the Department of Correctional Services (DOCS) and the Department of Parole into one agency called the Department of Corrections and Community Supervision (also referred to as the “Department”).  In addition to the merger, the bill amended CPL § 440.46 and in doing so expanded and clarified the scope of those eligible for resentencing.  The amendment became effective immediately, and can be found at L 2011, Ch. 62, Part C, Subpart B, § 79.  The law now reads as follows: 

Any person in the custody of the department of [correctional services] CORRECTIONS AND COMMUNITY SUPERVISION 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, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed the sentence.”

When the amendment to CPL § 440.60 is read in conjunction with the amendment to Executive Law § 259-i(2)(b), it is clear that the amendments intend for those under community supervision to be considered in the custody of this new Department and eligible for resentencing.  Executive Law § 259-i(2)(b) reads as follows:

“Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department [of correctional services or], the department of mental hygiene or THE OFFICE OF CHILDREN AND FAMILY SERVICES shall, while on presumptive release, parole, conditional release or post-release supervision be in the legal custody of the DEPARTMENT until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post release supervision, or return to imprisonment in the custody of the department, as the case may be.

The amendment is meaningful and the broader impact of CPL 440.46 is consistent with the overall theme of this section of the legislation.  Any argument that this merger was only for financial reasons is quelled by the legislative intent portion of the bill.  The legislative intent focuses on promoting successful and productive reentry and reintegration for both incarcerated individuals and individuals under community supervision. 
“In view of the commonality of purpose governing the fundamental missions of both agencies, a single new state agency should be created to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person from the day of sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” 

The amendment of CPL 440.64 impacts the eligibility of two categories of defendants.  The first group is those who filed for resentencing while still incarcerated, but were released to parole before resentencing occurred.  The amendment clarifies and confirms that these individuals are covered by the statute since they are now clearly in the custody of the newly created Department of Corrections and Community Supervision, even after their release onto parole (now “community supervision”).  The same is true for defendants who file for resentencing after being released from prison and placed on parole.

Furthermore, the amendment to Executive Law § 259-i(2)(b) clarifies the custodial status of those defendants who have been reincarcerated following a parole violation.  Some courts have reasoned that parole violators returned to prison were not in the custody of DOCS, and therefore not eligible for resentencing under 440.46.  That argument now falls by the wayside as this amendment rejects such reasoning.  Parole violators who are reincarcerated are now clearly in the custody of the new joint Department. 


5/4/11 UPDATE:   Although Westlaw has not yet updated CPL 440.46, there is a red flag that directs you to budget bill where the changes can be seen.  The statute has however been updated on the New York Assembly's website and can be found at the following link: New York CPL 440.46.

Tuesday, April 12, 2011

Defendants Should be Thoroughly Prepared for their Alcohol and Substance Abuse Evaluation

An eligible defendant desirous of being considered for judicial diversion triggers that consideration by making a request for an alcohol and substance abuse evaluation to a Superior Court Judge.  Pursuant to CPL §216.05(1) the case should then be referred to either the Superior Court for drug treatment or any other part in Superior Court designated as a Drug Treatment Court by the Administrative Judge for judicial diversion (See New York Rules of the Chief Administrative Judge, § 143.2(c)).  In order for the evaluation to be prepared, the defendant will be interviewed by a court approved entity or licensed health care professional experienced in alcohol and substance abuse treatment, or an OASAS credentialed counselor.  The report generated as a result of this interview is an important factor in determining whether a defendant will be offered the option of judicial diversion. 

Recent decisions have highlighted the fact that inconsistent statements made by a defendant can substantially harm his or her chances of being approved.  In People v. Hombach, ___ N.Y.S.2d ___, 2011 WL 1136549 (N.Y.Co.Ct.), 2011 N.Y. Slip Op. 21112, the court specifically noted that,

“In reviewing the alcohol and substance abuse evaluation the defendant’s answers are inconsistent.”

The court went on to point out that the defendant desired no treatment according to one form he filled out, yet orally indicated that he was tired of using drugs and wanted to change, but could not do so on his own.  This was one factor used by the Court to deny this defendant’s request for judicial diversion. 

Inconsistencies drawn out during the alcohol and substance abuse evaluation were also pointed out by the court in People v. Jordan, 28 Misc.3d 708, 902 N.Y.S.2d 336. 

“Ms. Cardona told the Court that the defendant said he had not used cocaine or drank alcohol since July 2009.  This information is not contained in the report, but it contradicts at least in part a statement attributed to the defendant in that report indicating ‘he was using alcohol and drugs at the time of the current offense.’”

While these types of inconsistencies cannot be avoided altogether, proper preparation prior to the interview can minimize these instances.  This is certainly not to suggest that defense counsel tell their clients to lie.  On the contrary, counsel should instruct their clients to be forthright and honest.  Many inconsistencies are the result of confusion or simple error by the defendant.  The cases suggest however that this type of error can prove quite costly.  Counsel should provide defendants with a general idea of what types of questions they can expect to be asked including questions regarding the timing and duration of alcohol and drug use, and prior treatment received.  This will allow defendants to get their facts straight before they are questioned by the evaluator.  Additionally, defendants should be educated regarding the issues that the Judge will consider when deciding whether or not to offer them judicial diversion.  Through their responses at the evaluation, defendants arguably have the ability to impact the Judge’s decision regarding three of the five issues discussed in CPL § 216.05(3)(b).  As such, defendants should be made aware that they will only be offered judicial diversion if the judge finds the following:

1.  The defendant has a history of alcohol or substance abuse or dependence;

2.  such alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior; and

3.  the defendant’s participation in judicial diversion could effectively address such abuse or dependence.

Defendants should be encouraged to not only admit but thoroughly discuss their problems with alcohol and substance abuse, and the negative impact these problems have had on their lives including how it has led to criminal behavior.  They must also demonstrate the desire and determination to address those problems in the hope that this will empower them to avoid future criminal activity. 

Another way for defense counsel to ensure the best possible alcohol and substance abuse evaluation for their clients is to first discuss with them the pros and cons of judicial diversion.  This discussion should remove any ambivalence the defendant may have about seeking judicial diversion.  It is this ambivalent or lesser committed defendant who is often screened out.  While the pros are more obvious, the cons are sometimes overlooked.  The benefits of judicial diversion for defendants include the avoidance of jail or prison, potential record sealing, and perhaps most importantly, the opportunity to properly address their alcohol or substance abuse problem so that they may lead a healthy and law abiding life.  Defendants must also consider the potential consequences if they fail to complete the program.  When this happens, many courts are sentencing defendants to a harsher sentence than otherwise available under a plea deal, effectively punishing defendants for trying treatment, but failing.  As such, entering into judicial diversion will result is a much longer prison sentence hanging over a defendant’s head.  Furthermore, defendants also must be aware of the time commitment required to complete the program.  This will have to be balanced with any other commitments that they may have including employment.  Judges look favorably upon defendants who understand the program and display confidence that they can fulfill their obligations and succeed.