Judicial Diversion: The Contract or Agreement Should Provide for Sealing

Judicial Diversion: The Contract or Agreement Should Provide for Sealing

Since the pre-Judicial Diversion drug courts that first began in the 1990s, jurisdictions across New York have varied in the outcome of successful completion of a diversion program, some dismissing the charge and sealing the arrest and prosecution records pursuant to CPL § 160.50, some reducing the charge to a violation conviction, and sealing pursuant to CPL § 160.55, and others reducing the charge to a non-sealable, criminal conviction.  In some jurisdictions, defendants have had charges dismissed or reduced to a violation, but have been required to waive sealing as a condition of participation in drug court.  The 2009 DLRA not only established the felony Judicial Diversion Program, but it also enacted CPL § 160.58, which allows for the sealing of drug-related convictions.  As a whole, the 2009 DLRA is strong evidence that the Legislature intended that successful participation in the Judicial Diversion program would result in the sealing of arrest and prosecution records.  Recent decisions, however, reveal that this issue is not being addressed sufficiently in the diversion contract or agreement prior to participation in the Judicial Diversion program, resulting in inconsistent and, in some cases, detrimental sealing outcomes.    

A brief overview of the three different sealing statutes helps to provide the context for a full appreciation of the issues and possible resolutions and strategies for defense counsel:

1)  CPL § 160.58 (conditional sealing):  Enacted as part of the 2009 DLRA, this statute allows a person to have a drug-related criminal conviction sealed as long as the person successfully completed the Judicial Diversion program or another similar judicially sanctioned treatment program and any sentence imposed.  This sealing results in records being conditionally sealed – DCJS, law enforcement and court records are sealed, but the defendant’s fingerprints are not destroyed and the records are automatically unsealed if the defendant is subsequently arrested for another criminal offense. Conditionally sealed convictions are included in the protections set forth in Human Rights Law § 296(16), meaning that an employer or occupational licensing agency cannot consider such convictions in making employment or occupational licensing decisions.  A special benefit of conditional sealing that is not included in the other sealing statutes is that in addition to sealing the incident conviction, a defendant can also have up to three prior misdemeanors drug convictions sealed.   

2)  CPL § 160.55 (partial sealing):  Individuals convicted of a non-criminal offense (a violation), automatically get the benefit of partial sealing under CPL § 160.55.  Partial sealing means that the defendant’s fingerprints are destroyed and DCJS and law enforcement records are sealed, though court records are not.  Like conditional sealing, CPL § 160.55 sealing falls within Human Rights Law § 296(16), offering the defendant protections against having the violation conviction considered in the employment context. Unlike conditional sealing, CPL § 160.55 sealing is permanent.      

3)  CPL § 160.50 (full sealing):  Arrest charges that result in a disposition “favorable to the accused” get the benefit of full sealing under CPL § 160.50.  Dispositions “favorable to the accused” are defined in subsection (3) of CPL § 160.50, and include, for example, ACDs or dismissals in the interests of justice.  Full sealing provides for destruction of fingerprints and the permanent sealing of DCJS, law enforcement, and court records.  Like CPL § 160.55 and CPL § 160.58 sealing, CPL § 160.50 sealing is included in Human Rights Law § 296(16), offering the defendant protections in the employment context.

A series of cases out of New York County illustrates the inconsistent results that occur when defense counsel fails to insist that the diversion contract or agreement clearly identify the specific disposition and appropriate sealing that will follow.  Prior to the 2009 DLRA, the Manhattan Drug Court contract provided that successful completion would result in a dismissal of the charges, though the defendant was required to “waive” CPL § 160.50 sealing.  After enactment of the 2009 DLRA, the contract retained the old provisions for dismissal of the charges and waiving of CPL § 160.50 sealing, though for Judicial Diversion program participation, the contract was amended to include a provision stating that the court would consider conditional sealing.  Upon successful completion of Judicial Diversion, however, defendants met strong opposition from the prosecution when they sought to have the arrest and prosecution records conditionally sealed.  The prosecution argued that conditional sealing is available only where there is a conviction and sentence, not when the charge has been dismissed.  The prosecution also opposed CPL § 160.50 sealing, asserting that successful completion of Judicial Diversion is not specifically listed in CPL § 160.50(3) as a disposition “favorable to the accused.”  At least two superior court justices in New York County have agreed with the prosecution, and in unreported decisions have denied those who successfully complete Judicial Diversion any kind of sealing, notwithstanding language in the diversion contract that contemplates sealing.          

At least two other justices, however, have honored the Judicial Diversion contract language and the legislative intent to seal records after successful completion of the Judicial Diversion program, although each justice relied upon a different sealing statute in dong so.  In Peoplev. Smith (Padro, J.,  New York County), Justice Padro held that it was proper to conditionally seal the defendant’s arrest and prosecution records after she successfully completed the Judicial Diversion program and after the charge was dismissed.  The court rejected the argument that CPL § 160.58 did not apply to dismissed arrests, reasoning 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.”  In Peoplev. JG, 2012 Slip Op 22136 (Weinberg, J., New York County), Justice Weinberg disagreed with Justice Padro’s solution to the sealing dilemma, although not the outcome of sealing, stating that where “the defendant has been allowed to withdraw his guilty plea and the case has been dismissed without sentence having ever been imposed, the conditional sealing provisions of CPL § 160.58, literally, do not apply.”  Justice Weinberg went on to concisely summarize the dilemma as follows:   

The only option for the successful Judicial Diversion Program participant who has had his case dismissed is to petition for sealing under the provisions of CPL § 160.50.  This deprives that defendant of the opportunity of having up to three prior eligible misdemeanor convictions sealed.  It also deprives the People of the advantages of a CPL § 160.58 conditional sealing as opposed to the more rigorous restrictions the People face under CPL § 160.50 sealing.  This anomaly should be addressed by the legislature.  

Though the diversion agreement did not provide for CPL § 160.50 sealing, Justice Weinberg ultimately concluded that since the defendant had entered the program pursuant to a contract that included sealing as an option, “essential fairness leaves the Court with no option except to consider sealing under CPL § 160.50.” 

Defense attorneys should take two cautionary lessons from this decision.  First, the Judicial Diversion contract should include a sealing provision that lawfully comports with the disposition provided for in the contract.  This means that until the legislature addresses the anomaly Justice Weinberg has identified, defendants who seek to benefit from having up to three prior drug misdemeanor convictions sealed will likely have to agree to a disposition other than dismissal of the charges in order to retain their eligibility for sealing pursuant to CPL § 160.58.  Second, the importance of negotiating a Judicial Diversion contract or agreement that thoughtfully addresses the sealing dilemma cannot be overstated.  While some defendants may prefer a contract or agreement that provides for a reduction to a drug misdemeanor, thereby ensuring that the defendant is eligible for conditional sealing of the diversion program conviction and up to three prior misdemeanors, others may prefer the more permanent nature of CPL § 160.50 sealing.  For these defendants, the contract or agreement should contemplate a dismissal in the interests of justice or an ACD – both of which are specifically defined as dispositions favorable to the accused.  If an outright dismissal is not possible, counsel should consider negotiating for a reduction to a violation, and sealing pursuant to CPL § 160.55.  What the best option is will depend on your client’s particular circumstances and of course, what is realistic in your particular jurisdiction.           

Violent Felony or Merit Time Ineligible Offense Committed After B Felony Drug Conviction is not an “Exclusion Offense”: Resentencing Permissible

Last year in People v. Devivo, 87 AD3d 794, the Third Department ruled that a defendant who commits a violent felony offense after his conviction for the class B felony drug offense for which he seeks resentencing is eligible for such relief under CPL § 440.46. (See our blog post from August 19^th, 2011).  The First Department has now adopted this view in People v. Cristostomo, NY Slip Op 03364 (1^st Dept.).  Similarly, in People v. Myles, 90 AD3d 952 (2^nd Dept.) the Second Department concluded that a defendant who commits a merit time ineligible offense after the conviction for the B felony drug offense for which he seeks resentencing is also legally eligible for resentencing. 

The rationale for all three decisions is the same.  In order for a potential exclusion offense to preclude resentencing as being an “exclusion offense” it must have occurred prior to the conviction for the class B felony drug offense.  To support their opinions, the First and Second Departments both cited the language of CPL § 440.46(5) where the term “exclusion offense” is defined.  Both Courts pointed out that the legislature chose the words “previous felony” when referring to the potential “exclusion offense” and the words “present felony” when referring to the B felony drug offense. 

Parolees are Now Eligible to Apply for Resentencing

In People v. Pomales, 940 NYS2d 454 (Bronx Cty.), the Court, relying on the plain meaning of the amended statute, ruled that non-incarcerated parolees are eligible for resentencing under CPL § 440.46. [1] 

When originally enacted, CPL § 440.46, as part of the 2009 Drug Law Reform Act, permitted any defendant convicted of a class B felony drug offense serving an indeterminate sentence with a maximum term of more than three years to apply for resentencing to a lower determinate sentence, provided that they were in the custody of the Department of Correctional Services (DOCS).  This was understood to mean that a person on parole was not eligible to apply for resentencing, and only people in prison were so eligible. 

Eligibility seemed to change when CPL § 440.46 was amended in 2011 to reflect the merger of DOCS and the Division of Parole.  The merger created the Department of Corrections and Community Supervision (DOCCS).  As a result, CPL § 440.46(1) was amended to change the eligibility criteria to “[a]ny person in the custody of the department of corrections and community supervision…”  A parolee would thus seem to qualify since a parolee would be in the custody of this newly created agency as would a state prisoner. 

In Pomales, the Court examined whether non-incarcerated individuals on parole should be considered eligible for resentencing in light of the amendment to CPL § 440.46.  Mr. Pomales had been sentenced in 2005 to 2-6 years in prison for the crime of Criminal Sale of a Controlled Substance in the Third Degree.  After serving a portion of his sentence, Mr. Pomales was released to parole supervision.  While on parole, he filed a motion for resentencing.

The prosecution contended that there is a distinction between “custody” and “legal custody”, and argued that parolees are not in the custody of DOCCS.  The prosecution essentially equated an individual “in custody” with an inmate.  Rejecting the prosecution’s argument, the Court pointed out that CPL § 440.46 does not distinguish between defendants who are incarcerated and those who are on parole, and concluded that as a result of the merger of the Department of Corrections and the Division of Parole, and the amendment to the statute, eligibility for resentencing under CPL § 440.46 has been expanded to include non-incarcerated parolees. 

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[1] The Court of Appeals has already held that prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under CPL § 440.46.  People v. Paulin, 17 NY3d 238.  In a companion case, the Court of Appeals also held that those who apply for resentencing while in prison, but are released prior to the application being decided, are eligible for resentencing despite their release.  People v. Santiago, 17 NY3d 246.  The Court of Appeals did not address the effect of the amendment to CPL § 440.46.

Whether to Request Consideration for Participation in the Judicial Diversion Program: Making an Informed and Thoughtful Decision

The defendant’s decision to request consideration for participation in the Judicial Diversion Program (JDP) is an important one and should not be taken lightly.  Defense counsel should spend time preparing their clients to decide whether JDP is the right choice for them.   

As discussed more thoroughly in our April 12^th blog post, the defendant in People v. Bona, 92 AD3d 1242, requested the opportunity to participate in JDP.  Following an alcohol and substance abuse evaluation, the judge granted Mr. Bona’s request and a guilty plea was entered.  Before an order and agreement were entered, Mr. Bona changed his mind and asked that his plea be withdrawn and that his case be returned to County Court.  It is our understanding that he made this request after learning that the schedule and time commitment of JDP would make it impossible for him to continue working. 

Although JDP offers many advantages over alternative dispositions, it’s not for everyone.  In order to avoid a last minute change of heart or a half-hearted effort at participation, defense counsel should carefully review with his or her client exactly what is required of JDP participants.  Although the details of JDP vary from county to county, the program often requires weekly court appearances in addition to mandatory substance abuse treatment.  Since treatment is the major component of JDP, the agreement between the defendant and the Court required by CPL § 216.05(5) will undoubtedly include a clause requiring the defendant to complete a treatment program.  The length and modality of treatment varies ranging from outpatient treatment to long-term inpatient treatment.  Defendants may also be required to obtain a GED or complete other educational programs before they can complete JDP.  All requirements of JDP should be reviewed in advance of making a decision about participation. 

Defense counsel should also give the defendant a detailed explanation of the pros and cons of JDP.  One key benefit is the chance for the defendant to avoid incarceration.   Additionally, completion of JDP often results in a reduction or dismissal of the charge(s).  If the charge is not dismissed upon completion of JDP, when the sentence is complete, the defendant is eligible for Conditional Sealing under CPL § 160.58.  Before making the decision to request JDP, defendants should be confident that they are ready to engage in the required substance abuse treatment.  Defendants who begin JDP without the commitment and desire to seek treatment and address their substance abuse problems are less likely to succeed. 

Defense counsel should review with his or her client the advantages and disadvantages of a JDP sentence as compared to a likely sentence without entry into JDP.  Particular attention should be focused on the sentence provided in the JDP agreement should the program not be completed.  Despite conventional wisdom, that a defendant should not be sentenced more harshly for trying treatment and failing than for not trying at all, some JDP courts continue this illogical approach.  Local practice should be carefully reviewed and discussed before making an informed and thoughtful decision. 

Fourth Department Decision Reminds Practitioners of the Importance of Treatment Court Agreements

In People v. Bona,  92 AD3d 1242 , the Fourth Department declared that before Judicial Diversion can officially begin, terms and conditions must be agreed upon, and in accordance with CPL § 216.05(4), the judge must issue an order explicitly granting the request to participate in the Judicial Diversion Program.  The Bona decision emphasizes the importance of diversion agreements in clarifying consequences and expectations for both the defendant and the diversion court. 

In Bona, after arraignment on an indictment charging him with Criminal Possession of a Controlled Substance in the 5^th Degree, Mr. Bona asked to be referred to the Judicial Diversion Program (JDP) part for an alcohol and substance abuse evaluation.  The arraigning court did so, and at some point after, the JDP judge decided to offer Mr. Bona the opportunity to participate in JDP.  But Mr. Bona pleaded guilty without formally agreeing to the terms and conditions of JDP, as required by CPL § 216.05(5).  Additionally, the judge did not issue a formal order pursuant to CPL § 216.05(4). 

Two weeks later Mr. Bona returned to court to sign the treatment court contract.  At that time, he had changed his mind about participating in JDP and asked that his plea be withdrawn and his case be returned to County Court for further proceedings.  The Diversion Court denied Mr. Bona’s request and sentenced him.  Mr. Bona appealed arguing that he had not yet started JDP, and as such the JDP court was without jurisdiction to sentence him and should have returned the case to the arraigning court.    The Fourth Department agreed, holding that because there was no agreement regarding terms and conditions of JDP, and because there was no judicial order for diversion, Mr. Bona had not yet begun the program.  As such, his request to withdraw his plea should have been granted. 

The Fourth Department’s holding is a reminder of the importance of treatment court agreements under CPL Article 216.  Thus, counsel should carefully consider what terms and conditions the agreements should and should not contain.  Below are a few recommendations:

-                          Defendants should not be required to waive sealing.  On the contrary, the agreement could include the promise of sealing upon successful completion of Judicial Diversion.  Unsealed convictions or arrests erect barriers to employment, housing, and education.  Removing these barriers will promote the successful reintegration of the defendant thereby increasing public safety.

-                          Diversion agreements should cap the sentence imposed if the defendant fails to successfully complete the program.  Ideally, the cap should reflect the sentence that would be imposed by way of a plea agreement that would have been (or was) offered prior to entering JDP.  Judges should not punish defendants for attempting to engage in treatment but failing.  As an alternative, counsel could advocate for different sentencing caps depending on the reason for removal from JDP.  For example, the sentence for being removed from JDP for committing a new crime could be different from the sentence imposed if the defendant fails to comply with other terms of the agreement. 

-                          The agreement should set forth a specific disposition upon completion of JDP. 

-                          Finally, an agreement that promises a reduction to a specific misdemeanor upon completion of JDP should also give the judge the freedom to outright dismiss for those defendants who excel in the program.  Remember that the best outcome is to have the felony charge(s) reduced to a violation that can be sealed under CPL § 160.55, or dismissed and sealed under § 160.50. 

Many courts have been using the same treatment court contract for years, and it’s normal to expect resistance to any type of change.  Some judges are adverse to the idea of reducing or dismissing a charge following completion of treatment court.  With CPL § 216.05(10), judges now have an explicit endorsement of contracts which specify a variety of outcomes including reduction to a non-criminal offense or dismissal of the charges. See CPL § 216.05(10) (explicitly stating that among other possible dispositions upon successful completion of JDP, is the option of “allowing the defendant to withdraw his or her guilty plea and dismissing the indictment.”)  This is a powerful tool for attorneys to seek favorable dispositions for their clients.  

The Second Department Reminds Lower Courts: Participation in the Judicial Diversion Program is not to be needlessly limited

Last week, in People v. DeYoung, 2012 NY Slip Op 02112, the Second Department reversed a trial court’s denial of the defendant’s request to participate in the Judicial Diversion Program (JDP, CPL Article 216).  People v. DeYoung is a wonderful example of persistent and effective defense advocacy.  It is also rich with helpful conclusions and practice tips for defense counsel to use when advocating for a client to be offered JDP participation. 

But first, an overview of the facts: Mr. DeYoung, who was charged with Criminal Possession of Marijuana in the first degree, initiated the process of seeking participation in the JDP by requesting a substance abuse evaluation pursuant to CPL § 216.05(1).  The court evaluator determined that Mr. DeYoung was addicted to marijuana and alcohol, but used the profits from selling drugs “to cover expenses beyond just his cannabis and alcohol addictions.”  Ultimately, the court evaluator concluded that Mr. DeYoung was not appropriate for participation in the JDP because his “admitted criminal act was for the purpose of financial gain” and not just to support his substance abuse and dependence problems. (Some of you may be familiar with this refrain from your local JDP judges).

Upon receiving this evaluation, Mr. DeYoung’s counsel submitted a written request for a hearing, attaching to this request a letter from a psychologist who had evaluated Mr. DeYoung and found him to be in need of treatment for cannabis dependence and substance abuse; he also identified a mental health disorder that could benefit from medication.  Because the psychologist had referred Mr. DeYoung to the Veterans Administration (VA) for treatment, defense counsel was also able to attach to his hearing request a letter from a licensed clinical social worker at the VA who said that Mr. DeYoung was engaged in and compliant with treatment.  During the hearing, the court evaluator testified, reiterating his belief that Mr. DeYoung’s criminal activity was motivated by financial need beyond his addiction.  But the court evaluator conceded that treatment would “absolutely” help Mr. DeYoung and that incarceration was not necessary.  Upon completion of the hearing, the trial court turned to the five factors listed in CPL § 216.05(3)(b) (i)-(v), and seized upon factor (iii), to deny Mr. DeYoung participation in the program because his “alcohol and substance abuse and dependence were not contributing factors to his criminal behavior.” 

Mr. DeYoung pleaded guilty to the indictment in exchange for a sentence of five years probation; but in doing so, defense counsel carefully preserved his right to appeal the denial of his application to participate in the JDP.  On appeal, the Second Department reversed, ultimately concluding that the record did not support the trial court’s finding that Mr. DeYoung’s “alcohol and substance abuse and dependence were not contributing factors to his criminal background” and that therefore, Mr. DeYoung should have been offered the opportunity to participate in the JDP.

Turning to the lessons to be gained from DeYoung, the following are just a few that we thought well worth highlighting: 

Though CPL Article 216 does not explicitly provide for a right to appeal, a trial court’s denial of JDP participation can be appealed even if the defendant pleads guilty.   

            In opposing Mr. DeYoung’s appeal, the prosecution argued that the appeal was foreclosed by Mr. DeYoung’s guilty plea.  The Second Department summarily rejected this argument, stating that Mr. DeYoung had carefully and explicitly preserved his right to appeal the JDP denial.    

The Judicial Diversion Program is available to statutorily eligible defendants who have a history of substance abuse or dependence, regardless of how the defendant used the drug sale profits and regardless of the amount of money involved or drugs sold.

 

The trial court’s decision illustrates what defense counsel around the State have witnessed since enactment of CPL Article 216 and which we discussed in our February 16^th blog – that is, many courts are reluctant to permit defendants charged with drug sales to participate in the JDP program.  But as the appellate court emphasized in DeYoung, CPL Article 216 explicitly includes defendants charged with drug sales.  Indeed, other courts have recognized as much, and in making this point, the DeYoung court quoted from People v. Jordan, 28 Misc.3d 708, in which the court emphasized the ameliorative nature of the 2004 and 2009 Drug Law Reform Acts (DLRAs) and noted that both DLRAs applied equally to those defendants who merely possess drugs and those who sell drugs.

Just as importantly, the DeYoung Court summarily rejected the trial court’s conclusion that since Mr. DeYoung used profits from his drug sales for purposes beyond his substance abuse and dependence, it followed that his substance abuse and dependence was not a contributing factor to his criminal conduct.  The DeYoung court reasoned as follows: “The fact that the defendant also used some of the proceeds for other purposes does not detract from the conclusion that his alcohol and substance abuse and dependence were factors contributing to his criminal behavior.”   

Finally, the DeYoung Court also easily dispensed with the trial court’s emphasis on the amount of marijuana and money involved in the transactions, stating: “While some County Court and Supreme Court cases suggest that diversion is appropriate only for low-level offenders (see e.g. People v. Coco, 28 Misc.3d 563, 565), the Legislature specifically made defendants charged with crimes up to class B felonies eligible for judicial diversion (see CPL 216.00[1]).  Class B felonies involve relatively large quantities of drugs (see e.g. Penal Law 220.16, 220.39), and people who sell such quantities of drugs are unlikely to spend the entire profit on drugs.  Nevertheless, the Legislature made such persons eligible for judicial diversion.” (Emphasis added).     

The value of taking full advantage of the opportunity for a JDP hearing.

            There is no question that the Second Department’s decision hinged upon the information that Mr. DeYoung’s counsel elicited and made part of the record through the hearing held pursuant to CPL § 215.05(3)(b).  Defense counsel effectively utilized a combination of reliable hearsay (the letters from the retained psychologist who evaluated Mr. DeYoung and the VA treatment provider), and live witness testimony to make the point that treatment could be an effective means by which to address Mr. DeYoung’s criminal conduct.  Indeed, during the hearing, defense counsel was able to elicit incredibly helpful information from the court evaluator, including his concession that treatment could “absolutely” address Mr. DeYoung’s substance abuse and dependence problem and that it was not necessary to incarcerate Mr. DeYoung (a factor a court must consider under CPL § 216.05(3)(b)).           

The value of obtaining and using defense experts.

While defense counsel did a wonderful job of eliciting favorable information from the court evaluator during the hearing, there is no question that his own experts set the stage for doing so.  In this regard, DeYoung illustrates the effective use of retained experts and non-retained, “treating” experts.  The retained expert, the psychologist who conducted a thorough evaluation of Mr. DeYoung, set forth a “comprehensive treatment protocol” to address Mr. DeYoung’s obvious cannabis dependence and polysubstance abuse, with a recommended psychiatric evaluation to address Mr. DeYoung’s mental health issues.  He also referred Mr. DeYoung to the VA for treatment.  In so doing, he helped to cultivate the non-retained, treating expert – the VA’s clinical social worker.  Non-retained, treating experts can be extremely valuable in cases such as this because such experts establish their relationship with the defendant outside the context of litigation and are therefore not perceived as “hired guns” or “conclusion driven.”  Rather, their neutral, personal observations of the defendant – which often occur over a longer period of time and are more extensive than those of retained experts – can provide invaluable insight into the defendant’s need for treatment and motivation for positive change.  This is precisely what happened in Mr. DeYoung’s case – the non-retained treating expert not only corroborated the opinion of the retained expert, but she also portrayed Mr. DeYoung as engaged in treatment and motivated to change his behavior.                   

The use of a non-retained treating expert in this case illustrates a helpful practice tip for defense counsel seeking to obtain a treatment alternative to prison: if at all possible, urge your client to start treatment on his or her own while the case is pending.  Doing so can go far in showing that the defendant is motivated for change; it also has the potential for providing counsel with helpful expert opinion.  

The value of appealing a JDP denial even if a non-incarcerative sentence was imposed.

Though he was denied JDP participation, Mr. DeYoung was sentenced to five years probation.  So why appeal the JDP denial?  There are several possible reasons, the most important of which is the possibility of having the conviction vacated, dismissed, and sealed after successful participation, or dropped down to a violation and sealed.  Both possibilities would ensure that Mr. DeYoung does not have to endure the life-long stigma of a criminal conviction and that his ongoing recovery will be promoted by a fair chance at employment, housing, and education.  Even if successful JDP participation were to result in a conviction, there would still be the possibility of conditional sealing, as set forth in CPL § 160.58. 

But the reasons to appeal extend beyond the benefits to Mr. DeYoung, and to the countless similarly-situated future defendants.  The Second Department’s decision in DeYoung will go far in helping defense counsel advocate for treatment outcomes for their clients and push back against courts that continue to frustrate full implementation of CPL Article 216 by failing to honor the statute’s legislative intent. DeYoung is strong endorsement of the notion that CPL Article 216 is to be interpreted as broadly as possible and that the Legislature meant what it said when it designed a diversion program that includes defendants charged with drug sales – even those involving relatively large amounts of money and drugs.     

Conditional Sealing: Shock is a Qualifying Program

Criminal Procedure Law § 160.58, enacted as part of the 2009 Rockefeller Drug Law Reforms, allows for the sealing of drug-related convictions and specified offenses under certain circumstances.  To have an eligible conviction(s) conditionally sealed, the individual must have completed either:

1.      A judicial diversion program under Article 216;

2.      A pre-existing Drug Court Program or a district attorney sponsored (DTAP) program; or

3.      Another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision. 

A conditional sealing motion requires a court to determine what constitutes “another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision."  In The Matter of K., (New York County), Judge Uviller determined that completion of the Shock program qualifies.  In this case, the defendant pled guilty to Criminal Sale of a Controlled Substance in the 3^rd Degree and was sentenced to 2-6 years of imprisonment.  There was no judicial order of shock as the sentencing pre-dated the enactment of Penal Law § 60.04(7).  While incarcerated the defendant applied for and was granted permission to participate in the Shock program.  Following successful completion of Shock the defendant was released to parole and participated in the six-month aftercare component of the program.  His record post-release was spotless. 

Defendant moved for conditional sealing upon completion of parole.  The prosecution opposed the motion for two reasons.  First, they argued that voluntary enrollment does not qualify as judicial diversion or a judicially mandated drug treatment program.  Second, the prosecution argued that Shock was not, a “drug treatment program of similar duration, requirements and level of supervision” as judicial diversion, drug court, or DTAP programs.  Rejecting the prosecutor’s arguments, the court compared Shock and its aftercare program to the Manhattan Treatment Court, finding that it is in fact similar in both duration and intensity and pointing out that treatment courts offer “several types of programs based on an individual defendant’s specific needs, with the number of hours, type and intensity of counseling varying from program to program.” 

Although the sentencing court had not specifically ordered enrollment in the Shock program, Judge Uviller, in granting the defendant’s motion for conditional sealing found that given the virtue and rigor of the Shock program, and the fact that Shock may now be judicially mandated, completion of the program constitutes “another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision.” 

The judge commented on the defendant’s notable success and that the conviction record would limit the defendant’s “ability to participate in and contribute fully to his community and deprives him of opportunities for self improvement.”  This decision again makes clear that in filing conditional sealing motions, it is important for defense counsel to provide proof of achievements, program completions, successful time on parole, and a detailed description of why conditional sealing will benefit the client. 

Although the decision In The Matter of K. specifically addresses conditional sealing for a defendant who completes the Shock program, the judge’s rationale may well be applied to defendants who complete the Willard program or CASAT.  

For additional information on conditional sealing, we invite you to read the article Advocating for Conditional Sealing – CPL § 160.58 which appeared in NYSDA’s Public Defense Backup Center Report.  

Court of Appeals Rules that the "10 Year Look Back" is Measured from the Date the Motion for Resentencing is Filed

This week, the Court of Appeals released its decision in People v. Sosa, 2012 NY Slip Op 01101.  The Court agreed with the conclusion previously reached by all four Appellate Departments ruling that when determining whether a defendant has a prior felony that would be an “exclusion offense” as to preclude a motion for resentencing under CPL § 440.46, the “look back” period is measured from when the defendant filed the motion for resentencing.  The majority rejected the contention argued by prosecutors across the state that the look back is measured from the date that the felony for which resentencing is sought was committed. 

Defense attorneys handling resentencing cases should be alert to the fact that over the course of the next few years, as time accrues on the 10 year look back, some defendants will “age in” to eligibility, and be able to proceed on resentencing motions that are premature at this point.  

Sale of Drugs Should Not Result in Automatic Exclusion from Judicial Diversion

            It is beyond argument that a significant percentage of defendants arrested for drug sales are also drug users.  To the extent that they either have a history of alcohol or substance abuse or dependence they should, pursuant to Article 216, be afforded the opportunity to be evaluated and considered for treatment through Judicial Diversion.  Unfortunately, some judges across the state routinely deny evaluation and treatment to people charged with or suspected of the sale of drugs.  An example of this unauthorized use of an ad hoc judicial “rule” was highlighted in a December 23, 2011 article published in the BuffaloNews.com entitled “Drug Suspect Rejected for Diversion Program”.  The defendant, Joshua Meadows, was charged with possession of more than half an ounce of cocaine.  In an attempt to get his client drug treatment through Judicial Diversion, defense counsel explained that the defendant would, “buy and sell on a daily basis to support his habit.  It’s a tragic scenario, but it’s been real life for my client since the age of 12.”  The Assistant District Attorney, seeking to block drug treatment through Judicial Diversion argued that Mr. Meadows had sold drugs to undercover police several times prior to his arrest on the possession charge and had been unsuccessful in three previous efforts at drug treatment.  Judge Sara Sheldon Farkas denied treatment, concluding that “The judicial diversion program is meant for addicts, not dealers…” 

            This exclusion, based upon an illusory dealer/addict dichotomization, not uncommon among the gatekeepers of Judicial Diversion and drug courts, ignores two simple facts.  First, when the legislature enacted Judicial Diversion, it provided that individuals charged with a sale or possession with intent to sell would be eligible for treatment, including at least 9 specific drug offenses involving either a sale or intent to sell for which a defendant could be charged and be considered an “eligible defendant” for Judicial Diversion purposes.  Second, this exclusion ignores both the underlying purpose of the statute that has shifted away from punishment and towards treatment in order “[t]o significantly reduce drug-related crime by addressing substance abuse that often lies at the core of criminal behavior” and the legislature’s recognition, embodied in the statute, that “[e]xpanding the number of nonviolent drug offenders that can be court ordered to drug abuse treatment will help break the cycle of drug use and crime and make our streets, homes and communities safer” (see N.Y. Sponsors Memorandum, 2009 S.B. 2855/A.B. 6085).  If treatment for drug abuse and dependence will indeed make us safer, why would we not want to provide treatment to those who sell drugs because they suffer from drug dependence or abuse – and thereby eliminate their need to engage in such criminal conduct?

Providing treatment through Judicial Diversion for individuals who sell drugs but also have a history of substance abuse or dependence is sound policy.  First, doing so is consistent with the underlying statutory purpose and the legislative reasoning behind the Judicial Diversion Program. The legislation expanded the scope of non-incarcerative sentences for non-violent drug offenses, designing “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.”  People v. Danton, et al., 27 Misc.3d 638, 644 (Sup. Ct., N.Y. Co. 2010).  Second, the statute clearly indicates that defendants charged with the sale of drugs as a class B, C, D or E felony are eligible.  Third, if the individual has a history of drug abuse or dependence, the need and purpose for treatment is the same whether one possess drugs for use or for sale,  The dichotomy  between users and users who sell drugs to support their habit is a distinction without a difference.  Fourth, public safety is enhanced by providing treatment for drug abuse or dependence regardless of the nature of the drug offense – possession merely for use or possession for use and sale. 

Some critics of drug reform have argued that Judicial Diversion allows people who are “major dealers” to escape punishment. However, the statute itself resolves this argument by excluding such “big time” drug dealers from eligibility for Judicial Diversion.  See CPL § 216.00 (1) (excluding from Judicial Diversion eligibility anyone charged with possession of a large quantity of drugs as a Class A-I or A-I drug offense or anyone charged with the newly created offense of “Operating as a Major Trafficker”).

            Judicial Diversion is initiated by a defendant’s request for an alcohol and substance abuse evaluation (CPL § 216.05(1)).  Unfortunately, many eligible defendants charged with sales offenses encounter judges who flatly refuse to order the evaluation.  In these cases, counsel should point out that ordering the evaluation does not commit the judge to make an offer of Judicial Diversion to the defendant.  The evaluation simply provides the court with information necessary to make a well informed decision under CPL § 216.05(3)(b), including whether there is in fact a need for treatment.  In addition, the hearing that follows the evaluation gives the parties the opportunity to properly address the question of whether the defendant is appropriate for Judicial Diversion. 

Across New York State some judges have created their own unwritten rule barring anyone charged with the sale of drugs from even being considered for Judicial Diversion.  Such unwritten rules serve as the basis to summarily refuse a request for an evaluation with responses such as “this defendant has a ‘distribution problem,’ not a ‘use problem.’”  Judges should, however, consider the fact that most users of illegal drugs will at some point sell drugs, since selling drugs is often a consequence of using drugs.[1]   As an addiction grows, selling drugs helps finance larger purchases for personal use.  Some sellers actually receive drugs for themselves as payment for their services.[2]  It should come as no surprise that defendants arrested for selling drugs are almost as likely to be under the influence of drugs at the time of their arrest as those arrested for the possession of drugs.[3]  The conclusion is inescapable that many people selling drugs are also users who could benefit from the treatment offered through Judicial Diversion. 

            Defense counsel and treatment providers who confront the dichotomizing of “seller and user” on a daily basis, should be persistent and vigilant in pressing the eligibility issue.  Several themes should repeatedly be advanced: 1) public safety is increased by treating the drug dependence and history of abuse of all defendants, whether they are a user or a user/seller; 2) the human cost of drug abuse and dependence can effectively be reduced by treatment;  3) “the policy of incarceration and punishment of non-violent drug users ha[s] failed;”[4]  and 4) the cost of incarceration far outweighs the cost of treatment and is more effective in reducing recidivism.

            Eventually your persistent and well-grounded arguments will bear fruit, and we all will benefit from a more effective implementation of the 2009 Drug Law Reforms.

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[1] Avelardo Valdez and Stephen J. Sifaneck. 2004.“Getting High and Getting By”: Dimensions of Drug Selling Behaviors Among American Mexican Gang Members in South Texas.

[2] Hunt, Dana E. 1990. “Drugs and Consensual Crimes: Drug Dealing and Prostitution” Crime and Justice: An Annual Review of Research, vol. 13: Drugs and Crime.

[3] Christopher J. Mumola. 1977. Bureau of Justice Statistics Special report: Substance Abuse and treatment, state and Federal Prisoners, 1977.

[4]  People v. Jordan, 29 Misc.3d 619 (Westchester Co. Ct. 2010).

Termination from Drug Court: What Process is Due?

The defendant in People v. Peck, 2011 NY Slip Op 09376, was a drug court participant whose contract included a provision that he was not to be arrested while enrolled in the program.  He entered drug court with the agreement that his class D felony would be reduced to a misdemeanor with the sentence of a conditional discharge upon successful completion of the program.  Failure to complete the program would result in a sentence of 1-3 years in state prison.  Nearly one year later, while still participating in the program, Mr. Peck was arrested and charged with two misdemeanor offenses.  He denied any involvement in the crimes for which he was charged.  Without conducting any sort of inquiry into the legitimacy of the arrest, the acting county court judge sentenced Peck to state prison.  Relying on precedent established in People v. Fiammegta, 14 NY3d 90,  the Fourth Department ruled that, “the court erred in failing to ‘carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis’ for defendant’s termination from the drug treatment court program.”  The court also cited People v. Outley, 80 NY2d at 713, indicating that before removing a defendant from drug court, it must be determined whether the new arrest is “without foundation.”

Peck’s drug court contract and participation pre-dated the enactment of article 216.  As a result, the limited due process requirements of Fiammegta and Outley applied.  However, article 216 requires a higher level of due process when a court considers whether a defendant violated a condition of his or her release under the judicial diversion program.  In such case the statutute provides for a “summary hearing consistent with due process and sufficient to satisfy the court that the defendant has in fact violated the condition. (CPL § 216.05(9)(b)).

One might argue that this higher standard should apply, not only to article 216 cases, but to all DTAP and non-judicial diversion drug court cases, relying upon the legislative intent expressed in article 216 that a higher level of judicial inquiry is required for determining violation of program conditions in all treatment court types of cases.  

Although not mentioned in the decision, it should be noted that both charges resulting from this defendant’s arrest while he was a participant in drug court were subsequently dismissed.  They were, as Peck had tried to explain to the Judge, simply unfounded.  Sadly, Peck had already served out his prison term.  The only recourse left was for the Appellate Division to remit the case to county court to determine whether the defendant should be allowed to withdraw his plea to a felony and plead guilty to a misdemeanor.

One further lesson might be extracted from Peck.  An arrest, of course, is nothing more than an accusation.  Anyone can be arrested, sometimes without any cause whatsoever.  It is preposterous that a defendant whould be removed from much needed treatment, merely because of an arrest.   Such a condition has no place in a treatment court contract. Counsel should object to any contract that contains such a provision.  Instead, counsel should request that the contract be amdended to include the same language that is suggested in CPL § 216.05(5) -  “refrain from engaging in criminal behavior”.  

The First Department Strengthens the Presumption in Favor of Resentencing in Class B Felony Drug Cases

A motion for resentencing made pursuant to CPL § 440.46 shall be granted unless “substantial justice” dictates otherwise (see Section 23 of Chapter 738 of the Laws of 2004).  As such, there is a strong presumption in favor of resentencing.  With their recent decision in People v. Cephas, 90 AD3d 557, the First Department built upon their decision in People v. Milton and reinforced this presumption.  In Milton, the court ruled that failure to complete a drug treatment program was not a sufficient reason to deny a resentencing motion, citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  The court’s decision in Cephas supports the notion that a motion for resentencing should not be denied based only on the defendant’s failures or bad acts which occurred before the offense for which resentencing is sought was ever committed. 

The county court judge denied the defendant’s motion for resentencing citing his long criminal history and the fact that he had relapsed into drugs and crime despite completing substance abuse programs during prior incarcerations.  In a unanimous reversal of the lower court’s decision, the First Department pointed to the defendant’s achievements following his B felony drug conviction including the completion of substance abuse programs, favorable evaluations from corrections officials, and his acceptance into a two-year residential treatment program indicating that these factors outweighed the defendant’s criminal history.  This decision reinforces the argument that the granting of resentencing for B felony offenders serving indeterminate sentences should be the norm, not the exception.  It should prove helpful to attorneys filing § 440.46 motions for clients with extensive criminal histories. 

Additional court decisions on the issue of “substantial justice” in CPL § 440.46 resentencing cases can be found on our website at: http://www.communityalternatives.org/publications/substantialJustice.html

Treatment Court Judges Should Embrace the Use of Medically Assisted Treatment (MAT) in their Courts

In New York City in 2010, nearly one-quarter, or 21.8% of defendants admitted to treatment court identified heroin (an opiate) as their drug of choice.  For the rest of New York, that number is only slightly lower at 17.9%.  The good news for these individuals is that there are medications that have been proven to be very effective at treating opioid addiction.  The bad news is that many treatment court judges refuse to utilize this proven means of treatment, and even go so far as to deny treatment court admission to  defendants who are currently being treated with one of these medications.  The Legal Action Center recently released an article titled, “Legality of Denying Access to Medication Assisted Treatmentin the Criminal Justice System.”  The article goes beyond failure to use medication assisted treatment (MAT) in treatment court, indicating that MAT should be available to individuals at all stages of the criminal justice system, including prison.  The Legal Action Center posits that to deny opiate-addicted individuals MAT violates their 8^th Amendment rights (prohibiting cruel and unusual punishment) and their 14^th Amendment rights (guaranteeing due process).  While these legal arguments may have to be utilized in the long-term to compel criminal justice actors to use MAT, our hope is that the failure to use it in treatment court can be reversed in the short-term by educating judges as to the efficacy of these medications, how they work, and how the benefits of MAT outweigh the risks. 

The two medications commonly administered to treat those suffering from an opioid addiction are methadone and buprenorphine (often sold under the trade names Subutex and Suboxone).  These medications normalize brain chemistry, block the euphoric effects of opioids, and relieve physiological cravings. The use of these medications has been studied extensively, and over 300 published studies confirm MAT is both safe and clinically effective for opioid dependence.  Using MAT to safely and effectively treat heroin addiction not only reduces drug arrests and crimes related to heroin abuse, but also reduces the spread of diseases and viruses such as HIV, which are often acquired through the use of shared needles. 

                Not surprisingly, given its proven effectiveness, the National Association of Drug Court Professionals has strongly recommended the use of MAT in drug courts.  California has gone as far as to pass a law prohibiting judges from banning opioid replacement therapy.  Notably, this law was passed after a drug court participant died of a heroin overdose because the judge ordered him to stop taking methadone.  This tragedy highlights how dangerous it can be to remove individuals from MAT.  Despite this danger, several judges routinely require defendants to detoxify from methadone or buprenorphine treatment as a condition of receiving an alternative to incarceration such as treatment court, even if doing so goes against the advice of a treating physician.  This course of action leaves defendants destined to fail: one study found that 82% of patients who had left methadone treatment relapsed to heroin addiction within 12 months.[1]

               

                Treatment court judges who are opposed to MAT commonly express the belief that this form of treatment merely substitutes one addiction with another.  Indeed, an Albany County drug court judge stated that he would not allow drug court participants to receive MAT because he “believes in recovery.”  Similarly, other judges believe that being addicted to methadone or buprenorphine is “like” being addicted to heroin and that any addiction is unacceptable.  Implicit in these beliefs is the notion that addiction is a “moral failing” rather than a medical problem amenable to medical treatment.  These beliefs also ignore the enormous difference between an active heroin addiction and the medical use of methadone or buprenorphine.  Heroin is remarkably different from both methadone and buprenorphine: while heroin induces intense euphoric effects, methadone and buprenorphine have only moderate effects that quickly disappear as the individual develops a tolerance.  MAT is not used to “get high,” but instead to treat withdrawal symptoms and relieve cravings. 

                To be sure, MAT does not “cure” an addiction to heroin.  Rather, it is a “corrective approach,” or a tool to help a person manage the incredibly intense symptoms and cravings associated with withdrawing from heroin. Using medication as a corrective approach has long been accepted in the treatment of other medical and mental health problems, and there is no legitimate reason that MAT should be considered differently.  In fact, long-term methadone maintenance is, “a medically safe, nontoxic treatment with minor, mostly transitory side effects, found mainly during the induction phase of treatment.”1  As such, it appears that the only potential downside of MAT is the fear that individuals prescribed methadone or buprenorphine will distribute them to others in the community, a practice the research calls “diversion.”  Judges however should be aware that primary addiction to these medications is rare since they do not produce the sharp euphoria that heroin does.  Thus, the “diverted” medication is not be used to “achieve a high,” but instead to treat the withdrawal symptoms of other individuals addicted to heroin.  In other words – even when diverted, the MAT medications are being taken for their originally prescribed purpose. Naturally, greater acceptance and availability of MAT treatment would diminish diversion, and allow those who need MAT to obtain it in a safe and controlled environment under the supervision of treatment professionals.   

                In sum, the use of methadone or buprenorphine in conjunction with traditional substance abuse treatment has proven to be the most effective method of treating opioid addicted individuals.  Treatment court judges interested in reducing crime, increasing public safety and promoting healthier communities should embrace MAT as a part their treatment programs.  For more information about MAT and the legality of denying MAT to individuals in the criminal justice system, I encourage you to read the two articles linked to below.

Legality of Denying Access to Medication Assisted Treatment in the Criminal Justice System  (Published by the Legal Action Center)

Methadone Maintenance Treatment (MMT): A Review of Historical and Clinical Issues

(Herman Joseph, Ph.D., Sharon Stancliff, M.D., and John Langrod, Ph.D.)

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[1] Herman Joseph, Ph.D. et al: Methadone Maintenance Treatment (MMT): A Review of Historical and Clinical Issues.