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 Bona changed his mind and asked that his plea be withdrawn and that his case be returned to County Court.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.