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.