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.