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”.