Tuesday, March 6, 2012

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 3rd 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.