Court Weighs in On the Availability of Conditional Sealing Following a Dismissal Upon Completion of Judicial Diversion

Earlier this month, Supreme Court Judge Eduardo Padro issued a written decision in People v. Smith, (New York County) regarding an issue that has plagued defendants in some jurisdictions, particularly Manhattan, since the Judicial Diversion Program went into effect in October, 2009.  In 2009, Ms. Smith was allowed to participate in the Judicial Diversion Program, with the promise that if she completed her out-patient substance abuse treatment, her plea would be vacated and the case would be dismissed in its entirety.  The Court also promised to consider sealing the arrest and prosecution records pursuant to CPL § 160.58.  This section of law specifically allows courts to conditionally seal cases of defendants who have completed the Judicial Diversion Program as well as other judicially sanctioned treatment programs. 

Upon her successful completion of the Judicial Diversion Program, Ms. Smith applied to the court for conditional sealing pursuant to CPL § 160.58.  The prosecution opposed, claiming that CPL § 160.58 only applies to defendants who have been convicted and sentenced.  Since Ms. Smith’s case had ultimately been dismissed, the prosecution claimed that she was never sentenced and therefore was ineligible for conditional sealing.  The prosecution also claimed that Ms. Smith was not eligible for full sealing under CPL §160.50 since completion of the Judicial Diversion Program is not specifically listed in §160.50(3) as a “termination in favor of the defendant.”  Of course, taken to its logical conclusion, the prosecution’s hyper-technical interpretation of the two sealing statutes means that defendants like Ms. Smith would be better off with a conviction and CPL §160.58 sealing than having their cases dismissed altogether.  Surely, in enacting CPL §160.58, the Legislature never intended such an absurd result.    

Luckily, Judge Padro refused to adopt the prosecution’s overly narrow interpretation of the term “sentence,” and instead reasoned that CPL § 160.58 must be examined, “within the context of the entire statutory scheme implemented by the legislature and as a corollary statute to Article 216.”  Judge Padro further stated that CPL § 160.58 was, “passed granting the court additional authority to fully carry out the purpose of Article 216.”  As with many Judicial Diversion cases, there was no “final sentence” as Ms. Smith’s case was ultimately dismissed.  However, in refusing to narrowly interpret the term “sentence” within CPL § 160.58, Judge Padro reasoned that Ms. Smith was subjected to a “conditional sentence” as she entered the Judicial Diversion program following her guilty plea.  Judge Padro ultimately ruled that the since Ms. Smith had successfully completed the Judicial Diversion Program, she was eligible to have her case conditionally sealed.  

            Unfortunately, the two other Manhattan judges in the Judicial Diversion part – Judge Coyne and Judge Nunez – have previously held that sealing under either CPL § 160.50 or  §160.58 is not available to defendants who have their cases dismissed after successful completion of the Judicial Diversion Program.  Nonetheless, People v. Smith provides defense counsel an effective tool to argue that CPL § 160.58 sealing should be available in such cases.  Of course, in many counties, courts are sealing such dismissals pursuant to CPL § 160.50, as dismissals in the interests of justice, which is specifically included in CPL § 160.50(3) as a “termination in favor of the defendant.”    

The possibility that either CPL § 160.50 or CPL § 160.58 sealing may be available raises the question: is one sealing better than the other?  Since the benefits of each type of sealing are slightly different, the answer depends on the particular circumstances of your client.  While sealing under CPL § 160.50 is permanent, sealing under § 160.58 is only conditional, meaning the records will be automatically unsealed if the defendant is subsequently arrested for a criminal offense.  However, CPL § 160.58 sealing does allow for up to three prior misdemeanor drug offenses to be sealed in addition to the instant offense. For some clients, the benefit of sealing these prior misdemeanors may outweigh the conditional nature of CPL § 160.58 sealing.        

(The copy of People v. Smith that is linked to this blog has been redacted to fully honor the sealing that was afforded Ms. Smith.  Attorneys who require an unredacted copy to advocate on behalf of their clients should contact Jeff Leibo at CCA)

Third Department Rules that Defendants Convicted of an "Exclusion Offense" Following Release from Prison are Eligible for Resentencing

On August 11, 2011, the Third Department decided People v. Devivo, NY Slip Op 06195.  The case involves a defendant convicted of Criminal Sale of a Controlled Substance in the 3^rd Degree who received a sentence of 3 to 9 years in prison.  While on parole for this drug conviction, the defendant was convicted of Burglary in the 2^nd Degree (a violent felony), in addition to two non-violent felonies, and was sent back to prison.  Burglary in the 2^nd Degree is considered an “exclusion offense” for purposes of resentencing under the Drug Law Reform Act.  The issue here is whether an “exclusion offense” committed after release from prison renders a defendant ineligible for resentencing.

All four Departments have now ruled that the look-back period for an “exclusion offense” is measured from the date of the defendant’s motion for resentencing.  In the instant case, the County Court Judge denied the defendant’s motion finding him ineligible for resentencing due to the subsequent “exclusion offense” within the 10 years preceding his motion for resentencing.  The Third Department rejected this conclusion, essentially ruling that the 10 year look-back period didn’t even apply to this offense pointing out that the statute refers to a “previous felony” and a “present felony”, but not to a felony committed following the defendant’s release.  As such, the defendant was found legally eligible for resentencing.  Unfortunately, upon making this finding, the Third Department deferred to the County Court’s conclusion that given the defendant’s post-release conviction and conduct while incarcerated, substantial justice dictated that the application be denied. 

In summary, defendants with a conviction for an “exclusion offense” following their release from prison on a class B drug offense conviction may be legally eligible for resentencing.  In such cases however, counsel should be prepared to face strong opposition from the prosecution who will argue that “substantial justice” dictates a denial of the resentencing application.  For more information on the issue of “substantial justice”, please see our previous blog dated 8/12/11.  

First Department Weighs in on the “Substantial Justice” Issue and Grants Resentencing

With its decision in People v. Paulin, NY Slip Op 05544, the Court of Appeals rejected attempts to limit eligibility for resentencing on class B drug offenses.  The focus of resentencing applications now turns to a new issue.  The primary goal is now to ward off the prosecution’s attempt to convince the Court that “substantial justice” demands a denial of resentencing.  The Appellate Division weighed in on this issue in People v. Milton, 2011 NY Slip Op 05981 (1^st Dept.).  The case involved a defendant convicted of two counts of Criminal Sale of a Controlled Substance in the 3^rd Degree.  The Bronx County Supreme Court cited his failure to complete a drug treatment program as their reason for denying his application for resentencing.  Despite this, the Appellate Division overturned the lower court decision citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  Attorney David Crow at the Legal Aid Society in New York City has prepared a Motion to Reargue/Renew based on the decision in Milton.  Please contact CCA for a copy of this motion.  

In addition to Milton, there have been several positive lower court decisions addressing this issue.  People v. Jones, (New York County Court), provides a detailed analysis of the “substantial justice” issue, and is a must read for any attorney filing a resentencing application.   In Jones, the defendant was similarly convicted of a sale offense.  His parole was revoked twice, and his record in prison included three disciplinary infractions.  He was also subsequently convicted of a misdemeanor resulting in local jail time.  In granting his request for resentencing, the Court cited the 2004 Drug Law Reform Act which indicates that a defendant shall be resentenced pursuant to §§ 60.04 & 70.70 unless substantial justice dictates that resentencing be denied.  “Simply put, there is a strong presumption in favor of granting a resentencing application for all eligible defendants.” People v. Lopez 10 Misc.3d 1056(A). 

Prosecutors have attempted to argue that only “users” and the lowest level drug sellers should be resentenced, and that others with higher level offenses should be denied resentencing citing “substantial justice” but as Lopez points out,

“…the Act is not limited to the lowest level participants.  To the contrary, the Act introduces a new sentencing scheme which covers all levels of participants.  The new scheme is consistent, moreover, with the legislature’s general preference for determinate sentences and post-release supervision rather than indeterminate sentences and parole.” 

In other cases, it is the defendant’s prison record that is the determining factor, but, “there is nothing in case law or DLRA-III (or its predecessors) that establishes that an inmate’s disciplinary history is the dispositive factor in deciding whether to offer re-sentence.” People v. Robert Hairston, (Bronx County, J.Alvarado, February 10, 2010).  In fact, in People v. Walltower, (Queens County, J.Kohm, April 6, 2010), the Court granted the defendant’s request for resentencing despite accruing 32 infractions while in prison, 21 of which were 3^rd tier. 

Since the purpose of resentencing under the DLRA is to correct overly harsh sentences, resentencing is not something that must be earned by a defendant.  Each of the cases cited above point to the conclusion that resentencing should only be denied in the rarest of cases.    “Put another way, in order for a court to completely deny resentencing, the facts and circumstances of an offender’s instant crime, criminal history, institutional record and other relevant facts must point so strongly against resentencing, when considering notions of fairness, reasonableness and due process, as to authoritatively command that an application be completely denied.” Jones.   

Kings County Decision Illustrates the Extent of Judicial Authority in Article 216 Diversion Cases

In Kings County, Supreme Court Judge Jo Ann Ferdinand recently issued a written decision in People v. Cefarello, 32 Misc.3d 1204(A) regarding Judicial Diversion.  Since there are so few written decisions on the topic, we felt it was worth some discussion.

The case involved a defendant with 2 prior drug felony convictions for which he had previously served time in state prison.  He sought participation in Judicial Diversion for his most recent arrest for CPCS 3^rd and Endangering the Welfare of Child.  The District Attorney would not consent to Judicial Diversion, but did consent to the defendant participating in the District Attorney-run DTAP program which required placement in a long-term residential treatment program.  The defendant rejected this offer, arguing that participation in Judicial Diversion with outpatient treatment was clinically more appropriate.

The good news is that the Court did not simply agree to the program consented to by the District Attorney.  The Judge understood that it was ultimately her decision to determine whether or not the defendant was appropriate for Judicial Diversion, and if so, what the treatment modality should be.  Additionally, she saw the value in conducting a hearing, during which she took testimony from the defendant’s substance abuse treatment expert and considered information obtained from research studies about the effectiveness of various treatment programs.  This aspect of the decision may prove helpful to attorneys who find themselves in jurisdictions where judges do not hold Judicial Diversion hearings or are inclined to allow the District Attorney’s Office to dictate whether or not an eligible defendant will be accepted to the Judicial  Diversion program, and if so, the modality of treatment to be offered.   

While we credit the Cefarello Court for holding a hearing and recognizing her ultimate authority to determine whether or not a defendant is eligible for Judicial Diversion, regardless of the prosecution’s position, it is unfortunate that she rejected the defense expert’s recommendation that the defendant be placed in an outpatient treatment program.  The Judge instead ordered that the defendant be placed in a residential treatment program, citing two reasons: 1) her concern for public safety; and 2) research about the effectiveness of different treatment modalities.  As for the public safety concern, it is true that taking the defendant off the street via residential treatment may secure public safety in the short term, but judges should be persuaded to look at what would be most effective in the long term.   Removing the defendant from his community, where there are more supports in place, could produce negative results for the defendant once discharged from residential treatment.  This is especially true for defendants who risk losing employment or stable housing if placed in residential treatment.  This is why treatment providers do not recommend residential treatment in all cases, but instead reserve this recommendation only for those who have severe substance abuse problem.   

As for the Court’s second reason – the research – the Judge cited two studies included in the Drug Abuse Treatment Outcome Studies (DATOS), which is a project of the National Institute on Drug Abuse (NIDA).  A summary of these studies can be found at www.datos.org.  Unfortunately, we were only able to find free access to one of the studies (Simpson et al) in its entirety.  Please contact the Center for Community Alternatives for information regarding the second study (Hubbard et al).  The Cefarello Court summarized the studies as standing for the proposition that residential treatment programs of at least three months duration are particularly cost effective for use with criminal justice clients.  But neither study supports this general proposition in all cases.  One of the studies, (by Hubbard et al.) points out that treatment durations of 3 months or more were associated with more positive outcomes, regardless of whether the treatment was residential or outpatient. The second (by Simpson et al.), points out that residential treatment is more effective for individuals whose substance abuse dependence was identified as severe.  However, this study goes on to state that, “Patients with moderate levels of problem severity can be treated with comparable effectiveness in either [long term residential] or outpatient drug-free (ODF) treatment if they stay for a minimum of 90 days.” 

It is possible that the Cefarello decision may be improperly relied upon by other courts as supporting the proposition that residential treatment is always more effective, particularly by courts that mistakenly look to residential treatment as a means of getting a defendant “off the streets” rather than as a tool for dealing with a severe substance abuse problem.   Effective advocates can draw upon the treatment literature to explain what propositions are supported by the research, and which are not, to help Judicial Diversion judges make clinically appropriate decisions about the modality of treatment for defendants who could benefit from treatment rather than punishment.